Karnataka High Court
Icici Lombard Motors Ins,Co,Ltd vs Bhimsha S/O Siddappa Mudgondaand ... on 24 March, 2022
Bench: Ashok S. Kinagi
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
MFA No.200458/2014 (MV)
Between:
ICICI Lombard General Insurance Co. Ltd.
Corporation Office, Zenith House,
Keshvarao Khade Marg, Mahalaxmi,
Mumbai-433334 its Divisional Office,
IInd floor Bellad and Company Gokul Road,
Hubli-30 now represented
Through Manager Legal
ICICI Lombard Motor Ins. Co., Ltd,
Kothari Complex, S.V.Patel Circle,
Gulbarga.
... Appellant
(By Sri C.S.Kalburgi, Advocate)
And:
1. Bhimsha S/o Siddappa Mudgonda,
Age: 53 years, Occ: Coolie,
R/o Hipperga, Tq: Humnabad,
Dist: Bidar-585 401.
2. Sangamma W/o Bhimsha Mudgonda,
Age: 53 years, Occ: Household,
R/o Hipperga, Tq: Humnabad,
Dist: Bidar-585 401.
2
3. Nagamma
W/o Chandrakanth Mudgonda,
Age: 23 years, Occ: House Hold,
Rest as above.
4. Asha D/o Chandrakant Mudgonda,
Age: 4 years, Minor represented
Through her mother respondent No.3.
5. Rajbir Gurg Geogast Corriers Pvt. Ltd.
Plot No.21-B-1st Floor, G.O.House,
Block No.43, Auto Nagar, Vanastali
Puram, Rangareddy District-410001 (AP)
... Respondents
(Notice to R1 to R3 served;
R4 is minor represented by R3; V/o dated
22.01.2018 notice to R5 is dispensed with)
This Miscellaneous First Appeal is filed under
Section 173(1) of the M.V.Act praying to set aside the
judgment and award dated 20th January, 2014 passed
by the Senior Civil Judge and MACT Humnabad in MVC
No.13/2011 and to pass such other orders as this Court
deems fit under the facts and circumstances of the case,
including the costs.
This appeal coming on for Hearing, this day, the
Court delivered the following:-
3
JUDGMENT
This appeal is filed by the Insurance company
under Section 173(1) of the Motor Vehicles Act (for
short 'the Act') challenging the judgment and award
dated 20.01.2014 passed by the Senior Civil Judge and
Motor Accident Claims Tribunal, Humnabad (for short
hereinafter referred to as 'the Tribunal') in MVC
No.13/2011.
2. Parties are referred to as per their ranking
before the Tribunal. Appellant is respondent No.2,
respondent Nos.1 to 4 are the petitioners and
respondent No.5 is respondent No.1 before the Tribunal.
3. Facts giving rise to filing of this appeal are
that on 18.10.2007 the deceased-Chandrakant was
proceeding from Hipparga village in the vehicle bearing
registration No.AP.29/V-4880 by driving himself. When
the said vehicle reached in front of Swamy Petrol Pump
on NH-9 road at Jakekur village, Omerga Taluk, at about
5.00 p.m., suddenly one cycle rider was crossing the
road and to save the life of the cycle rider, he applied
sudden break and due to which, the vehicle toppled
which resulted in the accident causing grievous injuries
to the deceased-Chandrakant. Thereafter, while he was
shifting to the Government Hospital, Omerga, he died.
The petitioners being the legal representatives of the
deceased-Chandrakanth filed claim petition under
Section 163-A of the Act seeking compensation of
Rs.6,50,000/- for the death of Chandrakanth in the road
traffic accident.
4. Respondent No.1 appeared before the
Tribunal, but he did not chose to file written statement.
Respondent No.2 appeared and filed written statement
denying the nature of the accident, age and income of
the deceased. It is contended that the accident took
place due to negligence on the part of the deceased who
drove the vehicle in high speed and in a rash and
negligent manner, therefore, it is not liable to pay
compensation and prayed to dismiss the claim petition.
5. The Tribunal on the basis of the pleadings of
the parties framed the issues and recorded evidence. In
order to prove the case, petitioner Nos.1 and 3 were
examined as PWs.1 and 2 and got marked the
documents as Exs.P1 to P10. Respondent No.2
examined its official as RW.1 and got marked the
document as Ex.R1.
6. The Tribunal after recording the evidence
and after considering the material on record has
recorded a finding that the petitioners have proved that
the deceased-Chandrakanth died in the accident, which
occurred on 18.10.2007 due to sudden apply of brakes
by himself to save the life of cycle rider and held that
the petitioners are entitled to compensation and
consequently, allowed the claim petition in part and
awarded compensation of Rs.5,30,000/- along with
interest at the rate of 6% per annum from the date of
claim petition till the date of realization and further
directed the respondents to pay compensation.
7. Respondent No.2 aggrieved by the judgment
and award passed by the Tribunal has filed this appeal.
8. Inspite of service of notice, none appears for
the petitioners.
9. Heard the learned counsel for respondent
No.2/Insurance company.
10. The learned counsel for respondent No.2
submits that the accident occurred due to negligence on
the part of the deceased. The Tribunal has committed
an error in awarding compensation of Rs.5,30,000/-. In
order to buttress his arguments, he has placed reliance
on the judgment of the Hon'ble Apex Court in the case
of Ramkhiladi and Another vs. The United India
Insurance Company and Another in Civil Appeal
No.9393/2019 disposed of on 07.01.2020 and
submits that, at the most, petitioners are entitled to a
sum of Rs.1,00,000/-. On these grounds, he prays to
allow the appeal.
11. I have perused the records and considered
the submissions made by the learned counsel for
respondent No.2. The point that arises for consideration
is with regard to quantum of compensation.
12. The occurrence of the accident and death of
the Chandrakant in the accident are not in dispute. In
order to prove that the accident has occurred due to the
rash and negligent driving of the vehicle by the
deceased-Chandrakant, the petitioners have produced
copy of the FIR which is marked as Ex.P1. Ex.P1
discloses that the accident occurred due to rash and
negligent driving of the vehicle by the deceased-
Chandrakant.
13. Perusal of the impugned judgment would
indicate that the petitioners have filed claim petition
under Section 163-A of the Act against the insurer of the
vehicle which was being driven by the deceased himself.
Though in a claim under Section 163-A of the Act, there
is no need for the petitioners 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. The claim petition under Section
163-A of the Act is based on the principle of no fault
liability. The deceased borrowed the vehicle from the
owner. The deceased will step into the shoes of the
owner and he cannot maintain petition under Section
163-A of the Act. The said view is supported by the
decision of the Hon'ble Apex Court in the case of
Ramkhiladi's case (supra). The Hon'ble Apex Court, in
the said case has observed that, as per the terms of the
contract insurance, in case of personal accident,
owner/driver is entitled to a sum of Rs.1,00,000/-.
Considering the law laid down by the Hon'ble Apex Court
in the aforesaid case, petitioners are entitled to a sum of
Rs.1,00,000/- as against Rs.5,30,000/- awarded by the
Tribunal.
14. In view of the above discussion, I proceed to
pass the following:
ORDER
i. The appeal is allowed in part.
ii. The impugned judgment and award
passed by the Tribunal is modified.
iii. The compensation amount awarded by
the Tribunal is reduced to
Rs.1,00,000/-. The petitioners are
entitled to a compensation of
Rs.1,00,000/- with interest at the rate
of 6% per annum from the date of
petition till the date of realization.
iv. Learned counsel for Respondent No.2
submits that as per the order dated
22.04.2014, he has deposited the
entire compensation amount with
interest as awarded by the Tribunal
i.e., Rs.7,15,954/-.
v. The Tribunal is directed to refund
excess amount to respondent No.2
after deducting compensation amount
with interest.
Sd/-
JUDGE
NB*
