National Highway Authority Of ... vs Sri. Muttanna S/O Sahadevappa ...
2023 Latest Caselaw 3 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.20931/2011 (MV)
                        C/W
             M.F.A. NO.20932/2011 (MV)

IN M.F.A.NO.20931/2011:

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.     SRI. MUTTANNA
       S/O SHADEVAPPA THOTAD,
       AGED ABOUT 31 YRS,
       OCC: OWNER OF COMMISSION AGENCY SHOP,
       R/O CHALAGERI, TALUK RANIBENNUR,
       DISTRICT HAVERI.

2.     SRI. SANJEEV MAHESHAPPA THEGGIN
       AGE: MAJOR,
       OWNER OF MOTOR CYCLE HERO HONDA
       BEARING REG. NO.KA/27/J-8292
       R/O CHALAGERI, TALUK RANIBENNUR,
       DISTRICT HAVERI.
                               2


3.     THE BRANCH MANAGER,
       NATIONAL INSURANCE COMPANY LTD.,
       BRANCH OFFICE, 1ST FLOOR,
       KRISHNA AGENCY, BUILDING,
       P.B.ROAD, HAVERI.

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

(BY SRI. AVINASH BANAKAR, ADVOCATE FOR RESPONDENT
NO.1;
NOTICE SERVED ON RESPONDENT NO.2;
SRI. RAJESH B. RAJANAL, ADVOCATE FOR RESPONDENT NO.3;
SRI. MAHESH WODEYAR, ADVOCATE FOR RESPONDENT NO.4)

      THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND
AWARD DATED 30.04.2010 PASSED IN MVC NO.133/2006, ON
THE FILE OF THE SESSIONS JUDGE, FAST TRACK COURT,
RANEBENNUR, AWARDING COMPENSATION OF RS.11,000/-
WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF
PETITION TILL ITS DEPOSIT.

IN M.F.A.NO.20932/2011:

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.     SRI. MAHESHAPPA
       S/O SIDDAPPA THEGGIN
                           3


     AGED ABOUT 58 YEARS,
     R/O CHALAGERI, TALUK RANIBENNUR,
     DISTRICT HAVERI.

2.   SRI. SANJEEV MAHESHAPPA THEGGIN
     AGE: MAJOR,
     OWNER OF MOTOR CYCLE HERO HONDA
     BEARING REG. NO.KA/27/J-8292
     R/O CHALAGERI, TALUK RANIBENNUR,
     DISTRICT HAVERI.

3.   THE BRANCH MANAGER,
     NATIONAL INSURANCE COMPANY LTD.,
     BRANCH OFFICE, 1ST FLOOR,
     KRISHNA AGENCY, BUILDING,
     P.B.ROAD, HAVERI.

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

(BY SRI. AVINASH BANAKAR, ADVOCATE FOR RESPONDENT
NOs.1 AND 2;
SRI. RAJESH B. RAJANAL, ADVOCATE FOR RESPONDENT NO.3;
SRI. MAHESH WODEYAR, ADVOCATE FOR RESPONDENT NO.4)

      THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND
AWARD DATED 30.04.2010 PASSED IN MVC NO.132/2006, ON
THE FILE OF THE SESSIONS JUDGE, FAST TRACK COURT,
RANEBENNUR, AWARDING COMPENSATION OF RS.4,12,500/-
WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF
PETITION TILL ITS DEPOSIT.

      THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR    JUDGMENT   ON    20.10.2022,  COMING   ON   FOR
PRONOUNCEMENT      OF    JUDGMENT     THROUGH    VIDEO
CONFERENCING AT THE PRINCIPAL BENCH AT BENGALURU,
THIS DAY , THE COURT DELIVERED THE FOLLOWING:
                                4


                         JUDGMENT

1. M.F.A. Nos.20931/2011 and 20932/2011 are

filed by the National Highways Authority of India

(henceforth referred to as "Authority" in short) challenging

the common Judgment dated 30.04.2010 and separate

Awards passed by the Sessions Judge, Fast Track Court,

Ranebennur (henceforth referred to as "Tribunal" in short)

in MVC NOs.133/2006 and 132/2006 respectively, 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 respective petitioner in MVC Nos.132/2006

and 133/2006 before the Tribunal will henceforth be

referred to as 'claimant'. Respondent Nos.1, 2, 3 and 4

before the Tribunal will henceforth be referred to as

'owner', 'insurer', 'Authority' and 'Contractor' respectively.

3. The claimant in MVC No.133/2006 was the

injured victim while the claimant in MVC No.132/2006 was

the father of the deceased Sri Raju Maheshappa Theggin

('Raju' for short), rider of the motorcycle bearing

registration No.KA.27/J.8292 (henceforth referred to as

'motorcycle'). In the claim petitions, it is pleaded that on

11.05.2003 at about 11.30 p.m., the deceased Raju was

riding the said motorcycle along with two pillion riders,

namely, claimant/s in MVC Nos.131/2006 and 133/2006

on National Highway No.4. When they reached Halebathi

village on Davanagere-Harihara road, a heavy goods

vehicle was driven from the opposite direction with blazing

lights on. The rider of the motorcycle was blinded by the

light and in an attempt to avoid an accident, moved 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 while

the pillion rider i.e., the claimant in MVC No.133/2006

suffered injuries. Hence, separate claim petitions were

filed under Section 163A of the Motor Vehicles Act, 1988

(for short, 'the M.V. Act, 1988'). The injured claimant

claimed Rs.2,00,000/-, while the dependant/father of the

deceased rider of the motorcycle claimed Rs.5,00,000/-

from the owner and the insurer of the motorcycle and the

Authority as well as the Contractor who was executing the

work.

4. Though the notice/s of the claim petition/s

was/were served on the owner of the motorcycle as well as

the Authority and its Contractor, the Authority remained ex

parte in both the claim petitions. Though owner and

Contractor appeared through their counsel, they did not

file their written statement.

5. The insurer of the motorcycle contested the

case - MVC No.132/2006 contending that the motorcycle

was not insured by it. It contended that a petition under

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

since an abated charge sheet was filed against the

deceased rider for the offences punishable under Sections

279, 337, and 304A of the IPC. It alleged that the

deceased rider did not possess a valid driving licence to

ride the motorcycle. It claimed that the deceased was

riding the motorcycle along with two pillion riders and

therefore, the accident occurred due to overloading on the

motorcycle. It contended that the owner of the motorcycle

had allowed an unauthorized person to ride the motorcycle

and therefore he had violated the terms of the policy of

insurance and hence, it was not liable to indemnify the

owner. It contended that the claimants themselves claimed

that the accident occurred due to the negligence of the

Authority and the Contractor in not putting up enough sign

boards about the excavation of a part of the road and

hence, it was not liable to indemnify the owner of the

motorcycle. As is normally done by any insurer, it denied

the age, occupation and income of the deceased as well as

the relationship of the claimant in MVC No.132/2006 with

the deceased.

6. In MVC No.133/2006, the insurer filed separate

objections statement reiterating the averments made in

the objections statement filed in MVC No.132/2006 and

further contended that the claimant is a pillion rider and

therefore, was not a third party in view of the judgment of

the Hon'ble Apex Court in the case of Ningamma and

another v. United India Insurance Company Limited

[(2009) 13 Supreme Court Cases 710]. The owner had

not paid any additional premium towards coverage of

pillion rider and hence, it was not liable to pay

compensation to the claimant. The compensation claimed

by the claimant was excessive.

7. Based on these contentions, the claim petitions

were clubbed and common evidence was recorded in MVC

No.133/2006 and the connected MVC No.131/2006. The

claimant in MVC No.133/2006 was examined as PW.1 while

the claimant in MVC No.131/2006 was examined as PW.2

and they marked documents as Exs.P1 to P5. The

respondents did not adduce any evidence.

8. In MVC No.132/2006, the claimant was

examined as PW.1 and a witness, who is the claimant in

MVC No.133/2006, was examined as PW.2 and they

marked documents as Exs.P1 to P6. The insurer examined

one of its officials as RW.1 who marked a copy of the

insurance policy as Ex.R1.

9. 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 at: Rs.6,000/- to the claimant in

MVC No.131/2006; Rs.11,000/- to the claimant in MVC

No.133/2006 and Rs.4,12,500/- to the claimant in MVC

No.132/2006 along with interest at 6% per annum from

the date of the claim petition till its deposit. It directed the

Authority and its Contractor to deposit the compensation

and interest. Later by an amendment, 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.

10. Being aggrieved by the aforesaid Judgment

and Awards, both these appeals are filed by the Authority,

broadly contending that the impugned Judgment and

Awards were 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 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 compensation fastened on it by the Tribunal was

perverse. It claimed that the income of the deceased was

erroneously considered at Rs.3000/- per month while

calculating the compensation towards loss of dependency.

It denied the injuries suffered by the injured claimant in

MVC No.133/2006.

11. Per contra, the learned counsel for the

respective respondent No.1 in these appeals contended

that the motorcycle was admittedly covered by a motor

insurance and hence, the claimant in MVC No.132/2006

was entitled to be compensated for the death of his son,

Sri Raju and the claimant in MVC No.133/2006 was

entitled to be compensated for the bodily injury caused to

him due to the use of the motorcycle. He 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 in not fixing adequate sign boards

indicating the deep excavation of a part of the road and

therefore, the deceased and the injured who were third

parties were entitled to be compensated by the insurer,

who may recover it from the Authority.

12. The learned counsel for insurer/respondent

No.3 in these appeals 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's case (referred supra), the

deceased Sri Raju, son of the claimant in MVC

No.132/2006, had borrowed the motorcycle from the

owner and hence, he stepped into the shoes of the owner

and therefore, his father cannot make a claim against the

insurer even under Section 163A of the M.V. Act, 1988. In

so far as the injured claimant in MVC No.133/2006 is

concerned, the learned counsel contended that the said

claimant was riding pillion on the motorcycle and hence

was not a third party and hence the insurer was not liable

to pay the compensation.

13. I have considered the contentions of the

learned counsel for the Authority/appellant as well as the

learned counsel for the claimant/respondent No.1 and the

learned counsel for the insurer/respondent No.3, in these

appeals. I have also perused the pleadings, evidence on

record as well as the impugned Judgment and awards

passed by the Tribunal.

14. 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 Sri Raju,

the rider of the motorcycle and son of the claimant in MVC

No.132/2006 in the accident is not in dispute and bodily

injury caused to the claimant in MVC No.133/2006 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 since it marked a copy of the

policy as per Ex.R1 in MVC No.132/2006. The Authority

and its Contractor did not lead any evidence to

demonstrate that that they had taken adequate steps to

warn the users of the road that, a 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

claimant/s to file appropriate proceedings before the

appropriate Civil Court and prove the tortious act and the

consequent liability of the Authority to indemnify them.

15. 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. Sri Raju, son of the

claimant in MVC No.132/2006, 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 marked

as Ex.R1 in MVC No.132/2006. 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."

16. 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 an 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 victim/s in road traffic

accident/s 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 victim/s in road

traffic accident/s. 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 separate Awards passed by the Tribunal in

MVC NOs.132/2006 and 133/2006 are upheld and the

appeals are disposed off on the above terms.

17. Any amount in deposit before this Court is

ordered to be transferred to the concerned Tribunal for

necessary orders.

18. 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.4 in

these appeals.

SD/-

JUDGE

sma