Karnataka High Court

The Branch Managaer vs Kusuma W/O Bhagwan Salunke on 3 March, 2022

Bench: J.M.Khazi

                             1             MFA.No.30896/2012
                                 c/w MFA.CROB.No.200064/2014



IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

        DATED THIS THE 3RD DAY OF MARCH, 2022

                         BEFORE

          THE HON'BLE MS.JUSTICE J.M.KHAZI

               MFA.No.30896/2012 (MV)
                        c/w
            MFA.CROB.No.200064/2014 (MV)

 IN MFA.No.30896/2012:

 BETWEEN:
 THE BRANCH MANAGER
 THE ORIENTAL INSURANCE CO. LTD.
 BIJAPUR
 NOW IT'S REPRESENTED BY
 DIVISIONAL MANAGER
                                               ... APPELLANT
 (BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
 AND:


 01.    KUSUMA
        W/O BHAGWAN SALUNKE
        AGE ABOUT 69 YEARS
        OCC: NIL

 02.    VAISHALI
        W/O DILIP SALUNKE
        AGE ABOUT 50 YEARS
        OCC: NIL

 03.    MENIKA
        D/O DILIP SELUNKE
        AGE ABOUT 22 YEARS
        OCC: STUDENT
                            2             MFA.No.30896/2012
                               c/w MFA.CROB.No.200064/2014



04.   PRIYANKA
      D/O DILIP SELUNKE
      AGE ABOUT 19 YEARS
      OCC: STUDENT

05.   AISHWARYA
      D/O DILIP SELUNKE
      AGE ABOUT 17 YEARS
      OCC: NIL
      N/G BY RESPONDENT NO.2

ALL ARE R/O ADARSH NAGAR, BIJAPUR-586101

06.   GOURISHANKAR
      S/O PANDMESHWAR DHATARGI
      AGE ABOUT 39 YEARS
      OCC: BUSINESS
      R/O BUDHWAR PETH
      SOLAPUR-413512
                                         ... RESPONDENTS

(SRI. N.G.RASALKAR, ADVOCATE FOR R1 TO R5;
      NOTICE TO R6 DISPENSED WITH V/O DT: 18.08.2014)


      THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
MOTOR VEHICLES ACT, PRAYING TO ALLOW THE APPEAL AND
CONSEQUENTLY BE PLEASED TO MODIFY THE JUDGMENT AND
AWARD DATED 09.02.2012 PASSED BY THE LEARNED MACT &
FAST TRACK COURT-I/II AT BIJAPUR IN MVC.NO.691/2008 AND
CONSEQUENTLY BE PLEASED TO DISCHARGE FROM ITS
LIABILITY TO PAY THE COMPENSATION AND ALSO PLEASE TO
REDUCE THE COMPENSATION SUITABLY, IN THE INTEREST OF
JUSTICE AND EQUITY.

IN MFA.CROB.NO.200064/2014:

BETWEEN:

01.   KUSUMA
      W/O BHAGWAN SALUNKE
      AGE ABOUT 71 YEARS
      OCC: NIL
                                3             MFA.No.30896/2012
                                   c/w MFA.CROB.No.200064/2014



02.    VAISHALI
       W/O DILIP SALUNKE
       AGE ABOUT 52 YEARS
       OCC: NIL

03.    MONIKA
       D/O DILIP SALUNKE
       AGE ABOUT 24 YEARS
       OCC: NIL

04.    PRIYANKA
       D/O DILIP SALUNKE
       AGE ABOUT 21 YEARS
       OCC: STUDENT

05.    AISHWARYA
       D/O DILIP SALUNKE
       AGE ABOUT 19 YEARS
       OCC: STUDENT
       N/G BY APPELLANT NO.2

ALL ARE R/O ADARSH NAGAR, BIJAPUR
                                                ... APPELLANTS
(BY SRI. N.G. RASALKAR, ADVOCATE)
AND:
01.    THE BRANCH MANAGER
       THE ORIENTAL INSURANCE CO.LTD
       BIJAPUR. NOW IT'S REPRESENTED BY
       DIVISIONAL MANAGER-586101

02.    GOURISHANKAR
       S/O PANDMESHWAR DHATARGI
       AGE ABOUT 41 YEARS
       OCC: BUSINESS
       R/O BUDHWAR PETH
       SOLAPUR-400001
                                       ... RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI FOR R1
    NOTICE TO R2 DISPENSED WITH V/O DT: 09.10.2020)
                               4             MFA.No.30896/2012
                                  c/w MFA.CROB.No.200064/2014



      THIS MFA.CROB IS FILED UNDER ORDER XLI RULE 22(1)
OF THE CODE OF CIVIL PROCEDURE, 1908 PRAYING TO ALLOW
THE CROSS APPEAL AND MODIFY THE JUDGMENT AND AWARD
BY ENHANCING THE COMPENSATION IN MVC.NO.691 OF 2008
DATED 09.02.2012 ON THE FILES OF THE PRESIDING OFFICER,
MACT, FAST TRACK COURT-I/II BIJAPUR UNDER ALL
PERMISSIBLE HEADS AND ENHANCE THE COMPENSATION
FROM Rs.3,32,000/- TO 15,00,000/- IN THE INTEREST OF
JUSTICE.

     THIS MFA CONNECTED WITH MFA.CROB BEING HEARD
AND RESERVED FOR JUDGMENT ON 18.01.2022, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-


                        JUDGMENT

The appeal and cross objections are arising out of

the same judgment and award of the Tribunal, granting

compensation in a petition filed under Section 163-A of

Motor Vehicles Act, against the owner and insurer of two

motor cycles involved in the accident resulting in the death

of one Dilip Salunke.

2. While MFA.No.30896/2012 is filed by the

Insurance Company, MFA.CROB.No.200064/2014 is filed

by the claimants seeking enhancement.

3. For the sake of convenience the parties are

referred to by their rank before the Tribunal.

c/w MFA.CROB.No.200064/2014

4. The facts leading to the filing of claim petition

are that on 14.01.2008, at 10.00 a.m., deceased was

proceeding from Mangalaweda to Marode on motor cycle

bearing registration No.MH 13 L 8280. When he was near

Rajamane petrol bunk, a motor cycle bearing registration

No.MH 13 M 6567 came from the opposite side and dashed

against the motor cycle ridden by the deceased. Riders of

both motor cycles as well as pillion riders of the deceased

were injured and they were shifted to the hospital. The

rider of motor cycle MH 13 L 8280 also died while

undergoing treatment. Claimants are the mother, wife and

children of deceased Dilip Salunke.

5. Respondent No.1 is the owner and respondent

No.2 is the insurer of the motor cycle bearing registration

No.MH 13 L 8280, which was ridden by the deceased at

the time of accident. The mother, wife and children of Dilip

Salunke filed claim petition under Section 163-A of Motor

Vehicles Act against the owner and insurer of the vehicle

c/w MFA.CROB.No.200064/2014

which deceased was riding at the time of accident and

claimed compensation in a sum of Rs.11,00,000/-.

6. Respondent No.1, the owner of the motor cycle

bearing No.MH 13 L 8280 remained ex-parte.

7. Respondent No.2 appeared and filed written

statement admitting the coverage of the motor cycle in

question. Respondent No.2 has raised a definite contention

that the accident occurred due to the rash or negligent

driving by the deceased. Since the claimants have claimed

that the income of deceased was Rs.7,000/- p.m, a

petition under Section 163-A of M.V. Act is not

maintainable. The deceased was not having a valid and

effective driving license at the time of accident. The

coverage of the vehicle in question was to indemnify the

liability arising from a third party. Since deceased was not

a third party so far as the motor cycle in question is

concerned, a petition under Section 163-A of M.V. Act is

not maintainable against respondent No.2. The risk of the

rider of the motor cycle in question is also not covered

c/w MFA.CROB.No.200064/2014

under Section 147 of M.V. Act. Even the contract of

insurance also does not cover the risk of the rider i.e.,

deceased and has sought for dismissal of the appeal.

8. In respect of the accident, head constable

Harishchandra Krishna Pawar has lodged a complaint to

the effect that the accident occurred due the rash and

negligent driving by the deceased and he dashed his motor

cycle against another motor cycle bearing registration

No.MH 13 M 6567. The owner and insurer of MH 13 M

6567 is a necessary party.

9. Based on the pleadings, the Tribunal has

framed issues.

10. Claimant No.2 has examined herself as PW-1

and Ex.P1 to 10 were marked on behalf of claimants.

11. On behalf of respondent No.2, Ex.R1 is

marked.

c/w MFA.CROB.No.200064/2014

12. Inspite of respondent No.2 raising a specific

contention that under Section 163-A of M.V. Act petition is

not maintainable against the owner and insurer of the very

vehicle ridden by the deceased, the Tribunal has, relying

upon the decisions reported 2009 Kant MAC 481 (Kant)1

[MFA.No.418/2005(WC)] and 2008 Kant MAC 322

(Kant)2 (ILR 2008 KAR 1249), held that the petition is

maintainable and granted compensation in a sum of

Rs.3,32,000/- and directed the respondent No.2 to pay the

same with interest at 6% p.a.

13. Being aggrieved by the impugned judgment

and award, respondent No.2 has filed the appeal

contending that the impugned award is illegal, arbitrary,

contrary to law and records of the case. The Tribunal has

not appreciated the contention of the appellant in its right

perspective. The Tribunal has failed to appreciate that,

petitioner under Section 163-A of the M.V. Act is not

maintainable against the owner and insurer of the vehilce

United India Insurance Company Ltd. Vs. Asif and others

M/s Oriental Insurance Company Vs. Smt.Salma and others

c/w MFA.CROB.No.200064/2014

driven by the deceased. The Tribunal has not discussed

regarding the contention of the appellant about the

maintainability of the claim petition.

14. The quantum of compensation awarded is in

excess and prays to allow the appeal and set aside the

impugned judgment and award.

15. On the other hand, in the cross objections, the

claimants have contended that the Tribunal has not taken

into consideration the aspect of pension sanctioned by the

Government Administrator while liquidating the Sick Mill

i.e., Narasing Giriji Mills Ltd, a public undertaking of

Maharashtra Government for including the loss of

dependency. The compensation granted is on the lower

side and prays to enhance the same.

16. I have heard the arguments of both sides and

perused the records.

17. The points that would arise for consideration of

this Court are:

c/w MFA.CROB.No.200064/2014

1) Having regard to the fact that respondent No.1 and 2 are the owner and insurer of motor cycle No.MH 13 L 8280 which the deceased was riding at the time accident, whether a petition under Section 163-A of M.V. Act under no fault liability is maintainable against respondent Nos. 1 and 2?

2) Having regard to the fact that the policy at Ex.R1 covering the vehicle in question is not covering the own damage claim of the owner as well as the personal accident coverage is also not availed by paying additional premium, whether the claimants are entitled for any compensation under the contract of insurance between respondent Nos.1 and 2 ?

3) What order ?

18. My findings to the above points are:

Point No.1: In the Negative Point No.2: In the Negative Point No.3: As per the final order for the

following:

c/w MFA.CROB.No.200064/2014

REASONS

19. Point No.1 & 2: Since these points involve

common discussion, they are considered together.

20. The undisputed facts are that respondent No.1

is the owner and respondent No.2 is the insurer of motor

cycle bearing MH 13/L 8280. It is also not in dispute that

at the time of accident deceased Dilip Salunke was riding

the said motor cycle. It is also not in dispute that accident

occurred due to collision between motor cycle No. MH 13/L

8280 with motor cycle bearing registration No.MH 13/M

6567. Though in the claim petition, the claimants have not

stated as to how exactly the accident took place, these

details are forthcoming from Ex.P1 complaint and Ex.P9

charge sheet.

21. It is pertinent to note that initially in respect of

the accident, complaint came to be lodged based on the

report of one Praveen Sambaji Nagani, on the basis of

which Harishchandra Krishna Pawar, head constable of

Mangalaweda Police station has given a report. In the said

c/w MFA.CROB.No.200064/2014

complaint, he has alleged that accident occurred due to

the rash or negligent driving by deceased Dilip Salunke of

motor cycle bearing No.MH 13 L 8280. However, after

completing the investigation, a charge sheet came to be

filed as per Ex.P9 against the rider of motor cycle No.MH

13 M 6567 Ramachandra Kondabyri, which is hereinafter

referred to as offending vehicle.

22. However, instead of filing claim petition under

Section 166 of M.V. Act or under Section 163-A of the M.V.

Act against the owner and insurer of the offending vehicle,

the claimants of chosen to file petition under Section 163-

A of M.V. Act under no fault liability against the owner and

insurer of the very own vehicle which was ridden by the

deceased.

23. Since the claimants are claiming compensation

under Section 163-A of the M.V. Act, they have pleaded

that the petition is maintainable against the respondents

being the owner and insurer of the motor cycle which

deceased was riding. As noted earlier, the claimants have

c/w MFA.CROB.No.200064/2014

not arrayed the owner and insurer of offending motor cycle

bearing No.MH 13 M 6567.

24. In the circumstances, the question that would

arise for consideration is whether the respondents being

the owner and insurer of the motor cycle which the

deceased was riding are liable to pay the compensation

under Section 163-A of the M.V. Act. Insurance is a

contract between the owner of the vehicle and insurance

company, by which the insurance company undertakes to

indemnify the owner in the event of arising of liability on

account of third party. Since, the deceased was driving the

motor cycle in question which belong to respondent No.1

which is covered by the insurance policy issued by

respondent No.2, deceased cannot be treated as a third

party and claim of the claimants cannot be treated as

claim by the third party so as to call respondent No.2 to

indemnify the respondent No.1.

c/w MFA.CROB.No.200064/2014

25. This aspect is clarified by the Hon'ble Apex

Court in the case reported in (2020) 2 SCC 550 3. In this

case also the deceased was riding a motor cycle bearing

Reg.No.RJ-02 SA 7811, wherein the allegations were that

the accident occurred due to rash or negligent riding by

another motor cycle bearing Reg.No.RJ-29-2M 9223. A

criminal case came to be registered against the rider of the

offending motor cycle bearing Reg.No.RJ-29-2M 9223.

However, the claimants filed claim petition against the

owner and insurer of the motor cycle which the deceased

was riding.

26. Relying upon its decision reported in (2009) 5

SCC (Civil) 241 4, the Hon'ble Apex Court held that since

the deceased was riding the motorbike belonging to the

respondent No.1, he could be treated as stepping into the

shoes of the owner and as such the claim petition under

Section 163-A of the M.V. Act against the owner and

Ramkhiladi and another vs. United India Insurance Company and another

Ningamma vs United India Insurance Company Limited

c/w MFA.CROB.No.200064/2014

insurance company of the vehicle which was ridden by the

deceased is not maintainable. The Hon'ble Apex Court

further held that a petition under Section 163-A of the

M.V. Act is not maintainable against the driver/owner and

insurer of the vehicle which was being driven by him. It

further held that even though under Section 163-A of the

M.V. Act, there is no need for the claimants to plead and

establish negligence and/or that death in respect of which

the claim petition is sought to be established was due to

wrongful act, negligence or default of the owner of the

vehicle concerned, the deceased/injured have to be a third

party in order to attract the liability of the insurance

company to indemnify the owner. As the claim petition is

governed by the contract of insurance, the liability of the

insurance company would be qua third party only. Since,

the deceased was riding the motor cycle which belong to

respondent No.1, he is stepping into the shoes of the

owner and as such respondent No.2 - insurance company

is not liable to indemnify the liability arising out of death of

the deceased.

c/w MFA.CROB.No.200064/2014

27. In Ramkhiladi's case referred to supra,

relying upon the decision reported in (2004) 8 SCC 553 5,

the Hon'ble Apex Court further held that Section 147 of the

M.V. Act does not require an insurance company to

assume the risk for death or bodily injury of the owner of

the vehicle. Since, the deceased was stepping into the

shoes of the owner, respondent No.2 is not liable to

indemnify the claim arising out of his death.

28. Further, in Ramkhiladi's case, relying upon

the decision reported in (2008) 5 SCC 736 6, the Hon'ble

Apex Court has also held that the liability under Section

163-A of the M.V. Act is on the owner of the vehicle, as a

person he cannot be both claimant as also a recipient and

therefore, the heirs of the owner could not have

maintained the claim petition in terms of the 163-A of the

M.V. Act.

Dhanaraj vs. New India Assurance Company

Oriental Insurance Company Limited vs. Rajanidevi

c/w MFA.CROB.No.200064/2014

29. Thus, in the present case, in view of the

decision of Ramkhiladi's case, the claim petition filed

under Section 163-A of the M.V. Act, by the mother, wife

and daughters of the deceased - Dilip Salunke, who was

riding the motor cycle owned by respondent No.1, which

was covered by insurance policy issued by respondent

No.2 is not maintainable against them. Therefore, the

learned Presiding Officer of the Tribunal has erred in

allowing the claim petition filed under Section 163-A of the

M.V. Act, against respondent No.1 and 2.

30. So far as the Asif's case referred to supra,

relied upon by the Tribunal, the said matter was arising

out of Workman Compensation Act and the insurance

policy was covering the liability of the driver of the vehicle

and therefore, the insurance company was directed to

indemnify the owner of the vehicle.

31. So far as Salma's case, referred to supra,

relied upon by the Tribunal, it was also a petition filed

under Section 163-A of M.V. Act, wherein the matter in

c/w MFA.CROB.No.200064/2014

issue was whether a claim petition is maintainable even

when the deceased/injured himself was guilty of

negligence. In that case, issue as whether a petition under

Section 163-A of M.V. Act is maintainable when the

claimant is not a third party was not in issue. Therefore,

the said decision is not applicable to the case on hand.

32. Since in the present case, the insurance policy

is not covering the own damage claim of the owner and

also personal accident coverage is also not taken by paying

additional premium, even under the contract of insurance

also, respondent No.2 is not liable to pay any

compensation to the claimants.

33. In the result, the claim petition filed by the

claimants is liable to be dismissed by allowing the appeal

filed by the respondent No.2 Insurance company. Since,

respondent No.2 is not liable to pay any compensation

under the insurance policy issued in respect of the vehicle

which was driven by the deceased himself, the question of

considering enhancement of the compensation would not

c/w MFA.CROB.No.200064/2014

arise. In the result, MFA.CROB.No.200064/2014 filed by

the claimants is liable to be dismissed and accordingly,

point Nos. 1 and 2 are answered in the Negative

34. Point No.3: In view of my findings on point

Nos.1 and 2, I proceed to pass the following:

ORDER

I. MFA.No.30896/2012 filed by the respondent

No.2 Insurance company is allowed. The claim

petition filed by the claimants under Section

163-A of the M.V. Act is hereby dismissed.

II. Consequently, MFA.CROB.No.200064/2014 is

also dismissed.