National Highway Authority Of ... vs Smt. Roopa W/O Late Ravindra Patil
2023 Latest Caselaw 25 Kant

                           1

         IN THE HIGH COURT OF KARNATAKA
                 DHARWAD BENCH

     DATED THIS THE 2ND DAY OF JANUARY, 2023

                        BEFORE

        THE HON'BLE MR. JUSTICE R. NATARAJ

              M.F.A. NO.20457/2011 (MV)

BETWEEN:

NATIONAL HIGHWAY AUTHORITY OF INDIA
REPRESENTED BY
PROJECT DIRECTOR, PIU CHITRADURGA,
PROJECT IMPLEMENTATION UNIT, NEAR J.M.I.T.,
CHITRADURGA-577502.
                                      ...APPELLANT
(BY SMT. JAYA B. BUNGLEY, ADVOCATE)

AND:

1.     SMT. ROOPA
       W/O LATE RAVINDRA PATIL
       AGED ABOUT 30 YRS,
       R/O KANCHENAHALLI, TALUK JAGALUR,
       DAVANAGERE.

2.     SMT. MAHADEVAKKA
       W/O PARVATAGOUDA PATIL,
       AGED ABOUT 64 YEARS,
       R/O RAJESHWARI NAGAR,
       RANEBENNUR,
       HAVERI.

3.     SRI. PARVATAGOUDA
       S/O BASANAGOUDA PATIL,
                              2

     AGED ABOUT 66 YRS,
     R/O RAJESHWARI NAGAR,
     RANEBENNUR, HAVERI.

4.   THE BRANCH MANAGER,
     NEW INDIA ASSURANCE COMPANY LTD.,

5.   M/S. ESSAR CONSTRUCTION PROJECT LTD.,
     P.B. ROAD, HONNUR GOLLARAHATTI CROSS,
     DAVANAGERE.
                                     ...RESPONDENTS

(BY SRI. T. BASAVANAGOUDA, ADVOCATE FOR RESPONDENT
NO.1;
SRI. AVINASH BANAKAR, ADVOCATE FOR RESPONDENT NO.2;
NOTICE IS SERVED ON RESPONDENT NO.3;
SRI. S.S.KOLIWAD, ADVOCATE FOR RESPONDENT NO.4;
SRI. MAHESH WODEYAR, ADVOCATE FOR RESPONDENT NO.5)


     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF THE

MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND

AWARD DATED 03.06.2010 PASSED IN MVC NO.217/2006 ON

THE FILE OF THE SESSIONS JUDGE, FAST TRACK COURT,

RANEBENNUR, AWARDING COMPENSATION OF Rs.7,93,000/-

WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF

PETITION TILL ITS DEPOSIT.


     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT ON 20.10.2022, COMING ON FOR PRONOUNCEMENT

OF JUDGMENT THROUGH VIDEO CONFERENCING AT THE
                                 3

PRINCIPAL BENCH AT BENGALURU, THIS DAY, THE COURT

DELIVERED THE FOLLOWING:

                         JUDGMENT

1. This appeal is filed by the National Highways

Authority of India (henceforth referred to as "Authority" in

short) challenging the Judgment and Award passed by the

Sessions Judge, Fast Track Court, Ranebennur (henceforth

referred to as "Tribunal" in short) in M.V.C No.217/2006 in

so far as it relates to the finding of the Tribunal that the

accident occurred due to the negligence of the Authority

and also the finding that it is liable to pay the

compensation determined therein.

2. The parties shall henceforth be referred to as they

were arrayed before the Tribunal. Petitioners before the

Tribunal will henceforth be referred to as 'claimants'.

Respondent Nos.1, 2, 3 and 4 before the Tribunal will

henceforth be referred to as 'owner', 'insurer', 'Authority'

and 'Contractor' respectively.

3. The claimants are the legal representatives of

deceased Sri Ravindrakumar. It is pleaded in the claim

petition that on 11.05.2003 at about 11.00 p.m., the

deceased was riding a motorcycle bearing registration No.

KA-27/E-9794 (henceforth referred to as 'motorcycle') on

National Highway No.4. When he reached Halebathi village

on Davanagere-Harihara road, a heavy goods vehicle was

driven from the opposite direction with blazing lights on.

The deceased was blinded by the light and in an attempt to

avoid an accident, moved on the motorcycle to the left side

of the road, unaware of the fact that the Authority had dug

a 10 feet x 10 feet ditch, which was barricaded by

blackened drums. He rammed into the drums and fell into

the ditch, dying instantaneously. Hence a claim petition

was filed under Section 166 of the Motor Vehicles Act,

1988 (for short, 'the M.V. Act, 1988') claiming

compensation of Rs.20,00,000/- from the owner and

insurer of the motorcycle and the Authority as well as the

Contractor who was executing the work. The claimants

thereafter amended the claim petition to a claim under

Section 163A of the M.V. Act, 1988.

4. Though the notice of the claim petition was served

on the owner of the motorcycle, he was placed ex parte.

The Contractor appeared through his counsel, but did not

file any written statement.

5. The insurer of the motorcycle contested the case

contending that the motorcycle was not insured by it. It

contended that a claim petition under Section 163A of the

M.V. Act, 1988 was not maintainable against it, since an

abated charge sheet was filed against the deceased rider

for the offences punishable under Section 279 and 304A of

the Indian Penal Code, 1860. It alleged that the accident

occurred due to the rash and negligent riding of the

motorcycle by the deceased himself. Hence, the insurer

was not liable to pay compensation. As is normally done

by any insurer, it denied the age, occupation and income

of the deceased as well as the relationship of the claimants

with the deceased.

6. The Authority too contested the case by filing its

written statement and claimed that it was not negligent

but it was the deceased rider of the motorcycle who was

negligent and responsible for the accident.

7. Based on these contentions, the claim petition was

set down for Trial. The claimant No.2 was examined as

PW.1 and she marked documents as Exs.P1 to P12. A

witness was examined as PW.2. Neither the insurer nor the

Authority examined any witness.

8. Based on the oral and documentary evidence, the

Tribunal held that the Authority and its Contractor were

negligent in not fixing adequate sign boards indicating the

deep excavation of a part of the road, which resulted in the

accident. It held that the accident occurred out of the use

of the motor vehicle and hence determined the

compensation payable to the claimants at Rs.7,93,000/-

along with interest at 6% per annum from the date of the

claim petition till deposit. It held that the Authority and its

Contractor were jointly and severally liable to pay the

compensation and interest. The Tribunal directed the

Authority to deposit the compensation determined with the

Tribunal within the period mentioned under Section 168(3)

of the M.V. Act, 1988.

9. Being aggrieved by the aforesaid Judgment and

Award, this appeal is filed by the Authority, broadly

contending that the impugned Judgment and Award was

capricious, perverse and erroneous. It claimed that the

finding of the Tribunal that the Authority and its Contractor

were negligent and were responsible for the accident was

contrary to the documents on record, such as the abated

chargesheet filed by the Police against the deceased rider

of the motorcycle. It claimed that it had put up red flags,

placed barrels and red/white patti was tied all along the

construction area. It claimed that the accident occurred

due to the rash and negligent riding by the deceased rider

of the motorcycle and hence, the liability to pay the

compensation fastened on it by the Tribunal was perverse.

It claimed that the income of the deceased was

erroneously considered by the Tribunal at Rs.6,000/- per

month.

10. Per contra, Sri T. Basavanagouda, learned counsel

for claimant No.1/respondent No.1 and Sri Avinash

Banakar, learned counsel for claimant No.2/respondent

No.2 contended that the vehicle in question was admittedly

covered by a motor insurance and hence, the claimants

were entitled to be compensated for the death of the rider

of the motorcycle. They contended that the accident did

not occur due to the negligence of the deceased but it was

due to the negligence of the Authority and its Contractor

and therefore, the deceased, who was a third party was

entitled to be compensated by the insurer who could

recover it from the Authority.

11. The learned counsel for the insurer/respondent No.4

contended that the motorcycle in question was covered by

a Two Wheeler Package-B policy which covered risk to

third party and own damage. He contended that in view of

the Judgment of the Hon'ble Apex Court in Ningamma

and another v. United India Insurance Company

Limited [(2009) 13 Supreme Court Cases 710], since the

deceased had borrowed the vehicle from the owner, he

stepped into the shoes of the owner and therefore, cannot

make a claim against the insurer even under Section 163A

of the M.V Act, 1988.

12. I have considered the contentions of the learned

counsel for the Authority/appellant as well as the

respective learned counsel for the claimant Nos.1 and

2/respondent Nos.1 and 2 and the learned counsel for the

insurer/respondent No.4. I have also perused the

pleadings, evidence on record as well as the Judgment

and Award passed by the Tribunal.

13. The occurrence of the accident on 11.05.2003 is not

in dispute. The place and time of the occurrence of the

accident is also not in dispute. The death of the rider of the

motorcycle in the accident is also not in dispute. The fact

that the left portion of the road at the spot where the

accident occurred was dug up is also not in dispute. The

fact that the motorcycle was insured by the insurer is not

disputed. The Authority and its Contractor did not lead any

evidence to demonstrate that they had taken adequate

steps to warn the users of the road that part of the road

was dug up. Under Section 16 of the National Highways

Authority of India Act, 1988, a highway authority owes an

absolute duty to ensure the safety of the users of the

highway. It can be held liable in tort for injury occasioned

on account of omission to oversee, or defective supervision

of its activities contracted out to another party. An action

for breach of statutory duty may result in strict or absolute

liability but certainly not a statutory liability contemplated

under the provisions of the M.V. Act, 1988. Therefore, in

the strict sense, an action claiming compensation from the

Authority was not maintainable and it was for the

claimants to file appropriate proceedings before the

appropriate Civil Court and prove the tortious act and the

consequent liability of the Authority to indemnify them.

14. However, this Court cannot loose sight of the fact

that the accident occurred due to the use of a motor

vehicle on a public street and the vehicle in

question/motorcycle was duly insured. The rider of the

motorcycle rode the motorcycle from Davanagere and met

with an accident near Halebathi village. Therefore, if the

rider of the motorcycle had ridden the motorcycle for such

a long distance, he cannot be accused of any negligence

and he cannot be held responsible for the accident. On the

contrary, it is claimed that the Authority had merely placed

drums as barricades without warning the users that a deep

ditch lay beyond the drums. Since it is claimed that the

ditch was on the left side of the road and the rider was

blinded by the blazing headlights of the vehicle/s coming

from the opposite side, he dashed against the drums and

fell into the ditch. The policy of insurance of the motorcycle

in question is not marked. However, the standard terms

and conditions prescribed by the Insurance Regulatory and

Development Authority of India (for short, 'IRDAI') in

respect of a motorcycle package B policy provided for the

liability of the insurer as follows:

"SECTION II - LIABILITY TO THIRD PARTIES

1. Subject to the limits of liability as laid down in the Schedule hereto the Company will indemnify the insured in the event of an accident caused by or arising out of the use of the insured vehicle against all sums which the insured shall become legally liable to pay in respect of

i) death of or bodily injury to any person including occupants carried in the insured vehicle (provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet the requirements of Motor Vehicles Act, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured,

ii) damage to property other than property belonging to the insured or held in trust or in the custody or control of the insured.

PROVIDED ALWAYS that the Company shall not be liable in respect of death injury or damage caused or arising beyond the limits of any carriageway or thoroughfare in connection with the bringing of the load to the vehicle for loading thereon or the taking

away of the load from the vehicle after unloading there from.

2. The Company will pay all costs and expenses incurred with its written consent.

3. In terms of and subject to the limitations of the indemnity granted by this section to the insured, the Company will indemnify any driver who is driving the vehicle on the insured's order or with insured's permission provided that such driver shall as though he/she was the insured observe fulfill and be subject to the terms exceptions and conditions of this Policy in so far as they apply.

4. In the event of the death of any person entitled to indemnity under this Policy the Company will in respect of the liability incurred by such person indemnify his/her personal representative in terms of and subject to the limitations of this Policy provided that such personal representative shall as though such representative was the insured observe fulfill and be subject to the terms exceptions and conditions of this Policy in so far as they apply.

5. The Company may at its own option

(A) arrange for representation at any Inquest or Fatal Inquiry in respect of any death which may be the subject of indemnity under this Policy and

(B) undertake the defence of proceedings in any Court of Law in respect of any act or alleged offence causing or relating to any event which may be the subject of indemnity under this Policy.

AVOIDANCE OF CERTAIN TERMS AND RIGHT [

OF RECOVERY

Nothing in this Policy or any endorsement hereon shall affect the right of any person indemnified by this Policy or any other person to recover an amount under or by virtue of the provisions of the Motor Vehicles Act.

But the Insured shall repay to the Company all sums paid by the Company which the Company would not have been liable to pay but for the said provision.

APPLICATION OF LIMITS OF INDEMNITY

In the event of any accident involving indemnity to more than one person any limitation by the terms of this Policy and/or of any Endorsement thereon of the amount of any indemnity shall apply to the aggregate amount of indemnity to all persons indemnified and such indemnity shall apply in priority to the insured.

SECTION III - PERSONAL ACCIDENT COVER FOR OWNER-DRIVER

Subject otherwise to the terms exceptions conditions and limitations of this Policy, the Company undertakes to pay compensation as per the following scale for bodily injury / death sustained by the owner-driver of the vehicle indirect connection with the vehicle insured whilst mounting into/dismounting from or travelling in the insured vehicle as a co-driver, caused by violent accidental external and visible means which independent of any other cause shall within six calendar months of such injury result in:

       Nature of injury                      Scale of
                                           compensation

 i) Death                                         100%

 ii) Loss of two limbs or sight                   100%
 of two eyes or one limb and
 sight of one eye.

 iii) Loss of one limb or sight                   50%
 of one eye

 iv)       Permanent    total                     100%
 disablement from injuries
 other than named above


Provided always that

A. the compensation shall be payable under only one of the items (i) to (iv) above in respect of the owner-driver arising out of any one occurrence and the total liability of the Company shall not in the aggregate exceed the sum of Rs.1 lakh during any one period of insurance.

B. no compensation shall be payable in respect of death or bodily injury directly or indirectly wholly or in part arising or resulting from or traceable to (a) intentional self injury suicide or attempted suicide physical defect or infirmity or (b) an accident happening whilst such person is under the influence of intoxicating liquor or drugs.

C. Such compensation shall be payable directly to the insured or to his/her legal representatives whose receipt shall be the full discharge in respect of the injury to the insured.

This cover is subject to

(a) the owner-driver is the registered owner of the vehicle insured herein;

(b) the owner-driver is the insured named in this Policy.

(c) the owner-driver holds an effective driving license, in accordance with the provisions of Rule 3

of the Central Motor Vehicles Rules, 1989, at the time of the accident."

15. Section 163 of the M.V. Act, 1988, was a special

provision inserted vide Act No.54 of 1994 with the avowed

objective of providing compensation to victims of accidents

without proving the negligence. Section 163A of the M.V.

Act, 1988 is armed with a non-obstante clause overriding

the other provisions contained in the M.V. Act, 1988 or any

other law for the time being in force or any instrument

having force of law. The underlying purpose of Section

163A of the M.V. Act, 1988, is to compel the owner of the

motorcycle or the authorized insurer to pay the dependent

legal heirs of the deceased who died in a road traffic

accident or to injured victims in road traffic accidents as

per the chart prescribed in the second Schedule of the

M.V. Act, 1988. The contention of the insurer that the

deceased was not a third party as he had stepped into the

shoes of the owner and therefore, a claim petition under

Section 163A of the M.V. Act, 1988 was not maintainable

in view of the judgment of the Hon'ble Apex Court in

Ningamma's case (referred supra) is liable to be rejected

since Section 163A of the M.V. Act, 1988 speaks of

compensating the legal heirs of the deceased who died in a

road traffic accident or the injured victims in road traffic

accidents. In the present case, the deceased was neither

the owner of the motorcycle nor the insured and therefore,

qualified to be a third party. Having regard to the purpose

and intentment of Section 163A of the M.V. Act, 1988, the

insurer was bound to pay and recover the compensation

from the Authority. However, having regard to the fact

that the Authority has already deposited the compensation

as determined by the Tribunal, it is appropriate in the facts

and circumstances of this case to uphold the liability cast

upon the Authority to pay the compensation. In that view

of the matter, the impugned Judgment and Award passed

by the Tribunal in MVC No.217/2016 is upheld and the

appeal is disposed off on the above terms.

16. Any amount in deposit before this Court is ordered to

be transferred to the concerned Tribunal for necessary

orders.

17. The Authority/appellant shall deposit the balance, if

any, within 30 days from the date of receipt of a certified

copy of this Judgment. It is needless to mention that the

Authority/appellant is at liberty to recover the balance

amount from the Contractor/respondent No.5 in this

appeal.

SD/-

JUDGE

sma