Karnataka High Court

Sharifsab Allauddinsab Teggihalli vs National Insurance Co.Ltd on 5 January, 2024

Author: V.Srishananda

Bench: V.Srishananda

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                                                           MFA No. 24173 of 2013




                         IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                               DATED THIS THE 5TH DAY OF JANUARY, 2024

                                                BEFORE
                                THE HON'BLE MR JUSTICE V.SRISHANANDA
                          MISCELLANEOUS FIRST APPEAL NO.24173 OF 2013 (MV)

                        BETWEEN:

                        SHARIFSAB ALLAUDDINSAB TEGGIHALLI,
                        AGE: 45 YEARS, OC: TAR ROAD WORK,
                        R/O. VENKATAPUR, TQ: HAVERI,
                        DIST: HAVERI.
                                                                     ...APPELLANT

                        (BY SRI. B.M. PATIL, ADVOCATE)

                        AND:

                        NATIONAL INSURANCE CO.LTD,
                        REPRESENTED BY ITS BRANCH MANAGER,
                        KRISHNA AGENCY BUILDING,
                        P.B. ROAD, HAVERI.
                                                                  ...RESPONDENT
           Digitally
           signed by
           BHARATHI
                        (BY SRI. G.N. RAICHUR, ADVOCATE)
BHARATHI   HM
HM         Date:
           2024.01.18
           12:29:32
           +0530               THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
                        SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
                        AWARD DATED 12.08.2013 PASSED IN MVC NO.224/2012 ON
                        THE FILE OF SENIOR CIVIL JUDGE AND MEMBER, ADDL. MACT,
                        HAVERI, DISMISSING THE PETITION FILED UNDER SECTION
                        163 A OF MV ACT.
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                                         NC: 2024:KHC-D:298
                                         MFA No. 24173 of 2013




     THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
HEARING,     THIS      DAY,    THE     COURT   DELIVERED    THE
FOLLOWING:
                              JUDGMENT

Heard Shri. B. M. Patil, learned counsel for appellant and

Shri. G. N. Raichur, learned counsel for the respondent.

2. The present appeal is filed against the judgment

and award passed in MVC No.224/2012 on the file of Senior

Civil Judge and AMACT, Haveri dated 12.08.2013.

3. Brief facts which are necessary for disposal of the

appeal are as under:

3.1. The claim petition is filed by the claimant/appellant

under Section 163A of the Motor Vehicles Act, seeking

compensation of Rs.3,00,000/-.

3.2. The facts of the case reveal that on 13.09.2008 the

claimant was riding a TVS XL motor cycle bearing registration

No.KA-27/R-68 towards Bisalalli. When the vehicle came near

Ramagondanahalli cross at about 9.00 a.m., a lady came

across the road without observing the vehicle there was a

collision and lady fell down after the motor cycle dashed to her.

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The rider of the motor cycle being the owner of the motor cycle

also fell down and he also sustained injuries.

4. The rider of the motor cycle laid the claim for

compensation seeking sum of Rs.3,00,000/- from the

Insurance Company.

5. Respondent-Insurance Company appeared and filed

objection statement stating that the rider being the owner of

the vehicle is not entitled to claim compensation.

6. The Tribunal after raising necessary issues,

recorded the evidence of the claimant as PW.1 and marked the

document as Ex.P.1 to P.10. The evidence of K.

Shivashankarappa, Administrative Officer of Insurance

Company and Mahesh Mathapati, RTO Officer as RW.1 and

RW.2 respectively was recorded and marked the documents on

behalf of respondent as Ex.R.1 and R2 and dismissed the claim

petition.

7. Against the said judgment, the claimant has

preferred the present appeal.

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8. Shri. B. M. Patil, learned counsel appearing for the

claimant/appellant reiterated the grounds urged in the appeal

and sought for allowing the claim petition by contending that

extra premium of Rs.50/- has been charged which would cover

the owner-cum-rider of the motor cycle and therefore, appeal

needs to be allowed.

9. Per contra, Shri. G. N. Raichur, representing

Insurance Company vehemently contended that the claim of

the claimant cannot be countenanced in law in view of the

authoritative principles of law enunciated in Ramkhiladi and

another Vs. United India Insurance Company Limited and

another reported in 2020 ACJ 627 SCC.

10. He further contended that assuming that the extra

premium of Rs.50/- is paid, the same would cover in the case

of permanent disability to the eye or any limb of the body and

in the absence of any such evidence placed on record, by the

claimant, the claim petition cannot be allowed.

11. He also pointed out that the owner-cum-rider of the

motor cycle did not possess the valid driving license and

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therefore, the claim petition is rightly rejected by the Trial

Court and sought for dismissal of the appeal.

12. This Court in the light of the arguments put forth on

behalf of the parties, perused the material on record

meticulously.

13. On such perusal of the material on record, it is

pertinent to note that the lady who came across the motor

cycle also filed a claim petition before the MACT Court, Byadgi

in MVC No.601/2009 and the same was allowed and suitable

compensation was paid by the Insurance Company to the

claimants therein.

14. The accident is established by placing necessary

oral and documentary evidence on record and the fact that the

appellant sustaining the injuries including the fracture of

clavicle is also established by placing necessary evidence on

record.

15. At this juncture, Shri. G. N. Raichur, learned

counsel for the respondent-Insurance Company invited the

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attention of this Court to the principles of law enunciated in

Ramkhiladi (supra) wherein, it is held as under:

"5. Heard the learned counsel appearing on behalf of the respective parties at length. We have also perused and considered the judgment and award passed by the learned Tribunal as well as the impugned judgment and order passed by the High Court and the evidence on record. The short questions which are posed for consideration of this Court are whether, in the facts and circumstances of the case and in a case where the driver, owner and the insurance company of another vehicle involved in an accident and whose driver was negligent are not joined as parties to the claim petition, meaning thereby that no claim petition is filed against them and the claim petition is filed only against the owner and the insurance company of another vehicle which was driven by the deceased himself and the deceased being in the shoes of the owner of the vehicle driven by himself, the insurance company of the vehicle driven by the deceased himself would be liable to pay the compensation under Section 163-A of the Act?; and whether the deceased not being a third party to Vehicle No.RJ 02 SA 7811 being in the shoes of the owner can maintain the claim under Section 163-A of the Act from the owner of the said vehicle?

5.4. An identical question came to be considered by this Court in Ningamma 2009 ACJ

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2020 (SC). In that case, the deceased was driving a motor cycle which was borrowed from its real owner and met with an accident by dashing against a bullock cart i.e. without involving any other vehicle. The claim petition was filed under Section 163-A of the Act by the legal representatives of the deceased against the real owner of the motor cycle which was being driven by the deceased. To that, this Court has observed and held that since the deceased has stepped into the shoes of the owner of the vehicle, Section 163-A of the Act cannot apply wherein the owner of the vehicle himself is involved. Consequently, it was held that the legal representatives of the deceased could not have claimed the compensation under Section 163-A of the Act. Therefore, as such, in the present case, the claimants could have even claimed the compensation and/or filed the claim petition under Section 163-A of the Act against the driver, owner and insurance company of the offending vehicle i.e. motor cycle bearing registration No. RJ 29 2M 9223, being a third party with respect to the offending vehicle. However, no claim under Section 163-A was filed against the driver, owner and/or insurance company of the motor cycle bearing registration No. RJ 29 2M 9223. It is an admitted position that the claim under Section 163-A of the Act was only against the owner and the insurance company of the motor cycle bearing registration No. RJ 02 SA 7811 which was borrowed by the deceased from the opponent-owner Bhagwan

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Sahay. Therefore, applying the law laid down by this Court in Ningamma (supra), and as the deceased has stepped into the shoes of the owner of the vehicle bearing registration No. RJ 02 SA 7811, as rightly held by the High Court, the claim petition under Section 163-A of the Act against the owner and insurance company of the vehicle bearing registration No. RJ 02 SA 7811 shall not be maintainable.

5.9. Now, so far as the submission made on behalf of the claimants that in a claim under Section 163-A of the Act mere use of the vehicle is enough and despite the compensation claimed by the heirs of the owner of the motor cycle which was involved in the accident resulting in his death, the claim under Section 163-A of the Act would be maintainable is concerned, in view of the decision of this Court in Rajni Devi, (2008 ACJ 1441 (SC), the aforesaid cannot be accepted. In Rajni Devi (supra), it has been specifically observed and held that the provisions of Section 163-A of the Act cannot be said to have any application with regard to an accident wherein the owner of the motor vehicle himself is involved. After considering the decisions of this Court in the cases of Oriental Insurance Co. Ltd. v. Jhuma Saha 2007 ACJ 818 (SC); Dhanraj, 2005 ACJ 1(SC); National Insurance Co. Ltd. v. Laxmi Narain Dhut 2007 ACJ 721 (SC) and Prem kumari v. Prahlad Dev, 2008 ACJ 776 (SC), it is ultimately concluded by this

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Court that the liability under Section 163-A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient and, therefore, the heirs of the owner could not have maintained the claim in terms of Section 163-A of the Act. It is further observed that, for the said purpose, only the terms of the contract of insurance could be taken recourse to. In the recent decision of this Court in Ashalata Bhowmik, 2018 ACJ 2825 (SC), it is specifically held by this Court that the parties shall be governed by the terms and conditions of the contract of insurance. Therefore, as per the contract of insurance, the insurance company shall be liable to pay the compensation to a third party and not to the owner, except to the extent of Rs. 1,00,000 as observed hereinabove."

16. In the case on hand, on perusal of Ex.D.2 it is

crystal clear that a sum of Rs.50/- is taken as additional

premium by Insurance Company.

17. Shri. G. N. Raichur, learned counsel for respondent

contended that no doubt a sum of Rs.50/- is charged as

additional premium at the time of issuance of the policy and

paid by the claimant. But in personal accident claim the policy

would cover as per the rules and regulations of the issuance of

policy only. The policy at Ex.D.2 covers the claim of the

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claimant if he has sustained permanent disability to the eye or