Karnataka High Court
The Divisional Manager vs Bhagyajyothi on 1 February, 2024
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MFA No. 5589 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1 ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 5589 OF 2014 (MV-D)
BETWEEN:
THE DIVISIONAL MANAGER
THE NATIONAL INSURANCE
COMPANY LTD, HASSAN-573 201
REP. BY AUTHORISED SIGNATORY
AT REGIONAL OFFICE NO.144, SHUBHARAM
COMPLEX, M G ROAD, BANGALORE-560 001 ... APPELLANT
(BY SRI.S.SHRISHAILA, ADV.)
AND:
1. BHAGYAJYOTHI
W/O LATE SHIVU @ SHIVAKUMAR
AGED ABOUT 29 YEARS
2. LIKITHA
D/O LATE SHIVU @ SHIVAKUMAR
AGED ABOUT 9 YEARS,
3. SIDDAIAH
Digitally signed by
S/O CHANNABASAVAIAH
MALA K N
AGED 66 YEARS
Location: HIGH COURT
OF KARNATAKA 4. SIDDAMMA
W/O SIDDIAH
AGED ABOUT 61 YEARS
RESPONDENT NOS.1 TO 4 ARE R/AT
NAGAVEDI VILLAGE, KANAKATTE HOBLI
ARASIKERE TALUK - 573 103
5. BASAVARAJU
S/O GURUSHANTHAIAH
AGED ABOUT 37 YEARS
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MFA No. 5589 of 2014
R/AT HALE BANDI, HALLI VILLAGE
KASABA HOBLI, ARASIKERE TALUK - 573 103
6. CHANDRANNA
S/O POOJARY RANGAPPA
AGED 46 YEARS
R/O THIRUPATHI VILLAGE
KASABA HOBLI
ARASIKERE TALUK - 573 103
7. THE BRANCH MANAGER
THE NATIONAL INSURANCE COMPANY LTD.
BRANCH OFFICE, B MURAGAPPA COMPLEX
1ST FLOOR, VIVEKANANDA ROAD, TUMKUR - 572 101
REP. BY THE BRANCH MANAGER
THE NATIONAL INSURANCE COMPANY LTD.
BRANCH OFFICE MANJUNAHTA COMPLEX
HASSAN - 575 201 ... RESPONDENTS
(BY SRI.A. S. MAHESH, ADV. FOR R1-R4;
SRI. DAYANAND S. PATIL, ADV. FOR R6;
R2 MINOR REP. BY R1
R5 NOTICE DISPENSED WITH;
VIDE ORDER DATED 30.10.2017;
R7 NOTICE DISPENSED WITH
VIDE ORDER DATED 12.04.2017)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 21.05.2014
PASSED IN MVC NO.141/2008 ON THE FILE OF THE SENIOR
CIVIL JUDGE, JMFC, MACT, ARASIKERE, AWARDING
COMPENSATION OF RS.4,48,000/- WITH INTEREST @ 6%P.A.,
FROM THE DATE OF PETITION TILL DEPOSIT.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 12.01.2024 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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MFA No. 5589 of 2014
JUDGMENT
In this appeal, the petitioners have challenged
the judgment and award dated 21.05.2014 in
M.V.C.No.141/2008 passed by the Senior Civil Judge
and M.A.C.T., Arsikere ('the Tribunal' for short).
2. For the sake of convenience, the rank of the
parties shall be referred to as per their status before
the Tribunal.
3. Brief facts of the case are, on 16.12.2007 at
about 06:30 pm, husband of the 1st petitioner, father
of petitioners No.2, son of petitioners No.3 and 4 by
name Shivakumar, the deceased, while riding TVS
Victor motor cycle bearing Reg.No.KA-13/S-6559 on
B.H. Road, near Sulekere Gate, a tractor-trailer
bearing Reg.No.KA-11/T-326-327 was stationed on
the road without any indication, driving the deceased
to hit on hind portion of the tractor-trailer and
succumbed to death at the spot. The petitioners
have approached the Tribunal for grant of
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compensation of Rs.25,00,000/- with 18% interest
p.a. under Section 163 (A) of Motor Vehicles Act.
Before the Tribunal, the respondents remained
exparte, hence the claim was allowed on
26.03.2010, awarding compensation of
Rs.4,24,000/- with 6% p.a. The respondents have
challenged the same in Misc.No.20/2011. By order
dated 30.11.2012, the ex-parte order was set aside
and parties were permitted to contest the claim.
Thereafter, respondents No.1, 2 and 4 have filed
their written statements to contest the claim. The
Tribunal after holding enquiry and taking evidence,
allowed the claim petition by awarding compensation
of Rs.4,48,000/- with 6% interest p.a. Aggrieved by
the same, the Insurance Company of the tractor as
well as the motor cycle has filed this appeal on
various grounds.
4. Heard the arguments of Sri. S. Shrishaila,
learned counsel for Insurance Company,
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Sri. A.S. Mahesh, learned counsel for the petitioners
and Sri. Dayanand. S. Patil, learned counsel for
respondent No.3.
5. It is the contention of the learned counsel for
the Insurance Company that under Section 163 (A)
of Motor Vehicles Act, the petitioners are entitled to
Rs.2,500/- towards conventional heads, but the
Tribunal has awarded Rs.40,000/-; the deceased was
the rider of the motor cycle, he is not a third-party;
the Tribunal has illegally directed the insurer of the
motor cycle to pay 50% of the award; the deceased
was not holding any driving licence to ride the motor
cycle and hence the impugned order calls for
interference.
6. Per contra, learned counsel for the
petitioners has contended that the owner, insurer of
the tractor and motor cycle are made as parties to
the claim petition and prayer was against all of
them; irrespective of the liability fastened to the
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extent of 50% by insurer of both motor cycle and
tractor, requests a direction to any one of the
Insurance Company to deposit the compensation and
these after to work out among themselves for the
apportionment. It is also contended that the claim
under Section 163 (A) of the Act, plea of negligence
is not available to the Insurance Companies and they
sought for a direction to the Insurance Company of
the Tractor to pay the compensation.
7. I have given my anxious consideration to the
arguments addressed on both sides and also perused
the materials on record.
8. There is no dispute as to the accident that
took place on 16.12.2007 while the deceased was
riding TVS Victor motor cycle belonging to
respondent No.1, hit against hind portion of the
tractor-trailer bearing Reg.No.KA-11/T-326-327 for
which respondent No.3 is the owner, respondent
No.4 is the driver, respondent No.5 is the insurer.
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Since the claim is under Section 163 (A), plea of
negligence or contributory negligence is not available
to the respondents to contest the claim.
Involvement of the motor cycle as well as the tractor
is established.
9. Adverting to the argument of learned
counsel for the Insurance Company of the motor
cycle that under Section 163 (A) of Motor Vehicles
Act, compensation has to be awarded to the
claimants under the structured formula under which
compensation towards loss of consortium to the wife
at Rs.5,000/-, loss of estate and funeral expenses at
Rs.2,500/- and Rs.2,000/- respectively has to be
awarded. The Tribunal has awarded Rs.10,000/-
towards loss of consortium to 1st petitioner,
Rs.5,000/- towards loss of love and affection to
petitioners No.2 to 4, Rs.10,000/- towards loss of
estate and Rs.5,000/- towards funeral expenses.
This is contrary to the structured formula. As
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regarding compensation towards loss of dependency
is concerned, the Tribunal has correctly taken the
rd
income of the deceased at Rs.3,000/- per month, ⅓
has to be deducted towards personal expenses, '17'
is the applicable multiplier for his age. Then, loss of
rd
dependency comes to Rs.3,000/- - Rs.1,000/- (⅓ )
= Rs.2,000/- x 12 x 17 = Rs.4,08,000/-. In all, the
petitioners are entitled to Rs.4,17,500/- as against
Rs.4,48,000/- awarded by the Tribunal.
10. Adverting to the argument of learned
counsel for the Insurance Company of the motor
cycle that at the time of accident the deceased was
riding the motor cycle, who has stepped into the
shoes of the owner of the motor cycle i.e.,
respondent No.1. Hon'ble Apex Court in Ningamma
and Another -Vs.- United India Insurance
Company Limited 1 held that:
"19. In Oriental Insurance Co. Ltd. V. Rajni
Devi/(2008)5 SCC 736 wherein one of us, namely,
(2009) 13 SCC 710
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Honble S.B.Sinha, J. was a party, it has been
categorically held that in a case where third party is
involved, the liability of the insurance company would
be unlimited. It was also held in the said decision that
where, however, compensation is claimed for the
death of the owner or another passenger of the
vehicle, the contract of insurance being governed by
the contract qua contract, the claim of the claimant
against the insurance company would depend upon
the terms thereof.
20 . . . . . . . . .
21. In our considered opinion, the ratio of the decision
in Oriental Insurance Co. Ltd. in (2008)5 SCC 736 is
clearly applicable to the facts of the present case. In
the present case, the deceased was not the owner of
the motorbike in question. He borrowed the said
motorbike from its real owner. The deceased cannot
be held to be an employee of the owner of the
motorbike although he was authorized to drive the
said vehicle by its owner and, therefore, he would step
into the shoes of the owner of the motorbike. We have
already extracted Section 163A of the MVA
hereinbefore. A bare perusal of the said provision
would make it explicitly clear that persons like the
deceased in the present case would step into the
shoes of the owner of the vehicle."
In view of the settled principles, the family members
of the deceased cannot claim compensation against
real owner of the motor cycle. Utmost they are
entitled to is reimbursement of any personal accident
(P.A.) cover issued to the owner of the motor cycle.
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Payment of 50% contribution attributed against the
insurer of the motor cycle is not proper.
11. The Insurance Company of the motor cycle
has right to avoid the liability as the deceased
stepped into the shoes of the owner of the motor
cycle. Total compensation has to be paid by the
driver, owner and insurer of the tractor. Since the
claim is dismissed against driver of the tractor,
owner of the tractor has to pay the compensation.
Respondent No.5 is the owner of the tractor. The
Insurance Company of the tractor has not challenged
the award and accepted its liability to pay the
compensation. The insurer of the tractor has to pay
the entire compensation. Accordingly, the appeal
merits consideration. In the result, the following:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award is
modified;
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(iii) The petitioners are entitled to total
compensation of Rs.4,17,500/- with
interest at the rate of 6% per annum,
from the date of petition till the date of
deposit;
(iii) Owner and insurer of the tractor i.e.,
respondents No.3 and 5 are directed to
deposit the compensation amount within
eight weeks from the date of receipt of
certified copy of this judgment.
(iv) As regarding apportionment is
concerned, the order of the Tribunal is
kept intact.
(v) The amount in deposit, if any, made by
the insurer of the motor cycle shall be
returned to it.
Sd/-
JUDGE
PA
CT:HS
