Karnataka High Court

The Manager National Ins.Co.Ltd vs Smt. Laxmibai W/O Ashok Rathod And ... on 21 March, 2022

Bench: Ashok S. Kinagi

                          1




         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 21ST DAY OF MARCH, 2022

                      BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

             MFA No.32192 OF 2013 (MV)


BETWEEN:

THE MANAGER,
NATIONAL INSURANCE CO. LTD,
BICHOLIM BRANCH OFFICE,
1ST FLOOR, TOWN CENTRE,
BICHOLIM, GOA-403 504.
THROUGH THE BRANCH MANAGER,
NATIONAL INSURANCE CO. LTD.,
1ST FLOOR, HERALAGI BUILDING,
BEHIND SIDDESHWAR TEMPLE,
BIJAPUR-586 101.

(NOW REPRESENTED THROUGH
AUTHORISED SIGNATORY, D.O, GULBARGA)

                                       ... APPELLANT

(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)

AND:

1.     SMT. LAXMIBAI,
       W/O ASHOK RATHOD,
       AGED ABOUT 26 YEARS,
       OCC: AGRICULTURE,
                            2




2.   KUMARI SHOBHA,
     D/O ASHOK RATHOD,
     AGED ABOUT 8 YEARS,
     OCC: STUDENT,

3.   KUMARI ANJALI,
     D/O ASHOK RATHOD,
     AGED ABOUT 6 YEARS,

4.   KUMARI ARATI,
     D/O ASHOK RATHOD,
     AGED ABOUT 5 YEARS,

5.   KUMAR ARJUN,
     S/O ASHOK RATHOD,
     AGED ABOUT 4 YEARS,

6.   SHRI. DHAKU,
     S/O TOPU RATHOD,
     AGED ABOUT 57 YEARS,
     OCC: NIL,

7.   SMT. MANAKABAI,
     W/O DHAKU RATHOD,
     AGED ABOUT 50 YEARS,
     OCC: HOUSEHOLD WORK,

     (PETITIONERS NO.2 TO 5 ARE MINORS,
     REPRESENTED BY THEIR NATURAL
     GUARDIAN MOTHER i.e., PETITIONER No.1)

     ALL ARE R/O BARAKOTRI TANDA,
     BIJAPUR-586 101.


8.   SRI. ASHOK,
     S/O EKANATH CHAVAN,
     AGED ABOUT 47 YEARS,
     OCC: COOLIE, R/O: H.NO.135-6,
                              3




      HONDA SATTARI, GOA-403 505.
      (OWNER OF M/C.NO.GA-01/Q-4632).
                                    ...RESPONDENTS

(BY SRI. S.V. BIRADAR, ADVOCATE FOR C/R1 & R6 & R7;
    SRI. S.R. NEMAGOUDA, ADVOCATE FOR R2 TO R5;
    NOTICE TO R8 IS SERVED)

      THIS MISCELLANEOUS FIRST               APPEAL   IS   FILED
UNDER SECTION 173(1) OF THE M.V.ACT PRAYING TO
CALL FOR THE RECORDS AND ALLOW THE ABOVE APPEAL
BY SETTING ASIDE THE IMPUGNED JUDGMENT AND
AWARD     DATED      04.07.2013    IN    MVC     NO.1475/2011
PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL
NO.V AT BIJAPUR.


      THIS APPEAL COMING ON FOR HEARING, THIS DAY,
THE 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 respondent

No.2/appellant being aggrieved by the judgment and

award dated 04.07.2013 passed in MVC

No.1475/2011 by the Motor Accident Claims Tribunal

No.V, Bijapur.

2. For the sake of convenience, parties are

referred to as per their ranking before the Claims

Tribunal. Appellant is the respondent No.2 and

respondents No.1 to 7 are the petitioners and

respondent No.8 is the respondent No.1 before the

Tribunal.

3. Facts giving rise to the filing of the appeal

briefly stated are that on 23.06.2011, the deceased

Ashok S/o Dhaku Rathod was proceeding on motor

cycle bearing registration No.GA-01-Q-4632 was

towards his house at Barakotri Tanda, while he was

proceeding on Kolhar road near swimming pool at

about 21.00 hours, at that time, one unknown lorry

dashed to the deceased and went away without

stopping thereby caused accident, due to which the

said Ashok sustained grievous injuries on his vital

parts and succumbed to the injuries.

4. The petitioners are the legal

representatives of the deceased Ashok have filed a

petition under Section 163(A) of the M.V.Act, seeking

compensation for the death of the deceased Ashok S/o

Dhaku Rathod in the road traffic accident.

5. The respondent No.1 did not appear before

the Tribunal inspite of service of notice and hence was

placed exparte. Respondent No.2 - Insurance

Company appeared through counsel and filed written

statement denying the age, avocation, income and

manner of accident. It is further contended that the

accident has occurred due to rash and negligent riding

of the rider of the motorcycle bearing registration

No.GA-01-Q-4632 and also contended that the rider

was not holding valid and effective driving licence as

on the date of accident. Hence, he sought for

dismissal of the petition.

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

the Claims Tribunal framed the following issues:

a) Whether the petitioners prove that, Ashok S/o Dhaku Rathod died in the Motor Vehicle Accident that occurred on 23.06.2011 at about 21.00 hours, near Bharat Swimming pool, on Kolhar road within the limits of Bijapur Traffic Police Station, while the deceased was proceeding on a motorcycle bearing registration No.GA-01-Q- 4632, which met with another vehicle, as alleged?

b) Whether the petitioners are entitled for the compensation? If so, what is the quantum and from whom?

c) What order or award?

7. In order to prove the case, the petitioner

No.1 examined himself as PW-1 and got exhibited

documents as Ex.P1 to Ex.P5. On behalf of the

respondents, the Official of Insurance Company got

examined as RW-1 and got marked the copy of

insurance policy as Ex.R1. The Tribunal, after

recording the evidence and considering the material

on record, held that accident was occurred due to rash

and negligent riding of the rider of motor cycle

bearing registration No.GA-01-Q-4632, and held that

petitioners are entitled for compensation and awarded

a compensation amount of Rs.5,53,500/- along with

interest at the rate of 6% p.a., from the date of

petition till realization and further respondent No.2 -

Insurance Company is directed to pay the award

amount. The respondent No.2 - Insurance Company

being aggrieved by the quantum of compensation

awarded by the Tribunal has filed this appeal.

8. Heard the learned counsel for the

respondent No.2 - Insurance Company and learned

counsel for the petitioners.

9. The learned counsel for the respondent No.2

submits that the deceased himself was riding a motor

cycle and there is a violation of policy condition. The

rider was not the owner of the vehicle and he did not

possess valid and effective driving licence as on the

date of accident. She further submits that, the

deceased borrowed the motorcycle from its real owner

and he cannot be held to be employee of the owner of

the vehicle. She further submits that the deceased

would step into the shoes of the owner of the

motorcycle. In order to buttress the arguments and

he placed reliance on the judgment of the Hon'ble

Apex Court in the case of RAMKHILADI AND

ANOTHER -vs- UNITED INDIA INSURANCE

COMPANY AND ANOTHER reported in 2020 (1)

T.A.C 353 (SC). She further submits that the

petitioners are entitled for compensation of only

Rs.1,00,000/-, wherein the Tribunal has awarded a

compensation of Rs.5,53,500/-, which is on the higher

side. Hence, on these grounds, she prays to allow the

appeal.

10. Per contra, learned counsel for the

petitioners supports the impugned judgment and

award passed by the Tribunal. He further submits

that the compensation awarded by the Tribunal is just

and proper and does not call for any interference.

Hence, on these grounds, he prays to dismiss the

appeal.

11. Perused the records and considered the

submissions made by learned counsel for the parties.

12. The only point that arise for consideration is

with regard to quantum of compensation.

13. It is the case of the petitioner that the

deceased Ashok was died in the road traffic accident

while he was riding motorcycle bearing registration

No.GA-01-Q-4632. Respondent No.1 is the owner of

the motorcycle, respondent No.1 has given a vehicle

to the deceased Ashok, who did not having valid and

effective driving licence as on the date of accident. In

order to support the defence of the respondent No.2 -

Insurance Company. Insurance Company examined

its Official as RW-1, who in his affidavit stating that

respondent No.1 has handed over the motorcycle to

an unauthorized person, who did not possess a valid

and effective driving licence as on the date of

accident. He further stated that the policy issued

under A liability, the policy does not cover the

occupants/pillion riders, the deceased was not owner

of the vehicle, he was unauthorized rider and not third

party. The deceased would step into the shoes of the

owner of the motorcycle. The Tribunal without

considering the said aspect has proceeded to pass the

impugned judgment and award, and awarded a total

compensation of Rs.5,53,500/-. The Tribunal has

committed an error in awarding a compensation. It is

not the case of the petitioners that the deceased was

employee of respondent No.1. When the petitioners

have failed to prove that the deceased was employee

of the respondent No.1. Thus, there is a violation of

policy conditions. In view of the law laid down by the

Hon'ble Apex Court in the case of RAMKHILADI AND

ANOTHER -vs- UNITED INDIA INSURANCE

COMPANY AND ANOTHER as held that:

"5.5 It is true that, in a claim under Section 163A of the Act, there is no need for the claimants to plead or establish the negligence and/or that the death in respect of which the claim petition is sought to be established was due to wrongful act, neglect or default of the owner of the vehicle concerned. It is also true that the claim petition under Section 163A of the Act is based on the principle of no fault liability. However, at the same time, the

deceased has to be a third party and cannot maintain a claim under Section 163A of the Act against the owner/insurer of the vehicle which is borrowed by him as he will be in the shoes of the owner and he cannot maintain a claim under Section 163A of the Act against the owner and insurer of the vehicle bearing registration No. RJ 2 SA 7811. In the present case, the parties are governed by the contract of insurance and under the contract of insurance the liability of the insurance company would be qua third party only. In the present case, as observed hereinabove, the deceased cannot be said to be a third party with respect to the insured vehicle bearing registration No. RJ 2 SA 7811.

There cannot be any dispute that the liability of the insurance company would be as per the terms and conditions of the contract of insurance. As held by this Court in the case of Dhanraj (supra), an insurance policy covers the liability incurred by the insured in respect of death of or

bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. In the said decision, it is further held by this Court that Section 147 does not require an Insurance Company to assume risk for death or bodily injury to the owner of the vehicle.

5.8. However, at the same time, even as per the contract of insurance, in case of personal accident the owner-driver is entitled to a sum of Rs.1 lakh. Therefore, the deceased, as observed hereinabove, who would be in the shoes of the owner shall be entitled to a sum of Rs.1 lakh, even as per the contract of insurance. However, it is the case on behalf of the original claimants that there is an amendment to the 2nd Schedule and a fixed amount of Rs.5 lakh has been specified in case of death and therefore the claimants

shall be entitled to Rs.5 lakh. The same cannot be accepted. In the present case, the accident took place in the year 2006 and even the Judgment and Award was passed by the learned Tribunal in the year 2009, and the impugned Judgment and Order has been passed by the High Court in 10th May.2018, i.e. much prior to the amendment in the 2nd Schedule. In the facts and circumstance of the present case, the claimants shall not be entitled to the benefit of the amendment to the 2nd Schedule. At the same time, as observed hereinabove, the claimants shall be entitled to Rs.1 lakh as per the terms of the contract of insurance, the driver being in the shoes of the owner of the vehicle."

The Hon'ble Apex Court held that as per contract

of insurance in case of personal accident the owner-

driver is entitled to a sum of Rs.1,00,000/-. In the

present case, the deceased Ashok step into the shoes

of the respondent No.1 - owner vehicle. Therefore,

the petitioners are entitled for a compensation of

Rs.1,00,000/- as per the contract of insurance.

14. In view of the above discussion, the appeal

is allowed in part. The judgment and award passed

by the Tribunal in M.V.C.No.1475/2011 is modified.

The petitioners are entitled for compensation of

Rs.1,00,000/- with interest at the rate of 8% p.a., and