Telangana High Court

Uppu Jalaja 3 Others vs P. Ramesh Another on 6 April, 2023

Bench: M.G.Priyadarsini

      THE HON'BLE SMT. JUSTICE M. G. PRIYADARSINI

                 M.A.C.M.A. No. 1849 of 2014

JUDGMENT:

Feeling aggrieved and dissatisfied with the Award

passed by the Chairman, Motor Accident Claims Tribunal-

cum-II Additional District Judge, Karimnagar at Jagtial

(hereinafter referred to as 'the learned Tribunal'), in O.P.No.

81 of 2011, dated 13.01.2014, the appellants/claimants have

preferred the present appeal.

2. For the sake of convenience, the parties hereinafter

referred to as they are arrayed before the learned Tribunal.

3. The facts that lead to the present appeal in nutshell, are

as under:

The claimants, who are the wife, minor children and

father of one Uppu Jalander (hereinafter referred to as 'the

deceased'), filed claim-petition under Section 163-A of the

Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act')

claiming compensation of Rs.5,00,000/- for the death of the

deceased in a vehicular accident, which occurred on

03.04.2011. It is stated that on 03.04.2011 at about 7.00

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pm., while the deceased was riding the bike of respondent

No.1 and when he reached near a petrol bunk on the National

High Way No.16 at Korutla, due to burst of front tyre of the

bike, he lost control and that bike gave dash to the road

divider, due to which he had a fatal fall and sustained severe

injuries and while undergoing treatment in the hospital

succumbed to the injuries. The concerned Police registered a

crime for the offence under Section 279 I.P.C. read with 174

Cr.P.C., later on closed the said crime by filing a final report

before the Court to the effect 'Action abated'. The claimants

filed the aforesaid O.P. against respondent Nos.1 and 2, who

are the owner and insurer of the bike respectively.

4. Before the learned Tribunal, while respondent No.1

remained ex parte, respondent No.2-Insurance Company has

resisted the claim by filing a counter and contended that the

policy was only 'Act policy' and no extra premium was paid to

cover the risk of owner or the rider under personal accident

coverage and in collusion with respondent No.1, the claimants

with a delay of 19 hours got lodged a complaint with the

Police with false allegations and the insured i.e. respondent

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No.1 violated many of the terms and conditions of the policy.

Therefore, respondent No.2 is not liable to pay any

compensation to the claimants.

5. The Tribunal, considering the claim and the counter

filed by the insurer of the offending vehicle, and on evaluation

of the evidence, both oral and documentary, has partly

allowed the said claim petition and awarded a total sum of

Rs.4,14,000/- as compensation along with the interest

@ 7.5% per annum from the date of filing of the claim

petition till the date of realization payable by respondent No.1

only while dismissing the claim against respondent No.2-

Insurance Company. Challenging the same, the present

appeal came to be filed by the claimants seeking

enhancement of compensation payable by respondent Nos.1

and 2 jointly and severally.

6. Learned counsel for the claimants has vehemently

submitted that the learned Tribunal erred in holding that the

insurance company is not liable to pay the compensation to

the claimants on the ground that Ex.B-1-Policy is only an Act

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policy and no extra premium was paid to cover the risk of

owner or his agent and as the claimants have failed to bring

on record that the deceased was a third party to Ex.B-1-

Policy, respondent No.2-Insurance Company cannot be

fastened with the liability to pay the compensation and the

learned Tribunal directed respondent No.1-owner only to pay

the compensation awarded to the claimants.

7. It is further submitted by the learned counsel for the

claimants that the claim petition preferred by the claimants

was under Section 163-A of the Act and, therefore, when the

claim petition was preferred under Section 163-A of the Act,

there is no need for the claimants to plead or establish that

the death in respect of which the claim petition has been

made was due to any wrongful act or neglect or default of

owner of vehicle concerned or any other person. It is further

submitted by the learned counsel for the claimants that the

claim petition filed by the claimants was based on the

principle of no-fault liability, therefore, as the present claim

premised on the no-fault liability under Section 163-A of the

Act by the legal heirs of the deceased, the same was

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maintainable against the owner and insurer of the motor

vehicle, which was being driven by him, more particularly,

when the deceased was not the owner of the vehicle and that

respondent No.1 was the registered owner of the concerned

vehicle and, therefore, the Insurance Company cannot be

absolved from its liability to pay the compensation.

8. In support thereof, learned counsel for the claimants

has relied upon the decision of Hon'ble Supreme Court in the

case of Ramkhiladi and another vs. The United Insurance

Company and another (Civil Appeal No.9393 of 2019 decided

on 07.01.2020).

9. It is also submitted by the learned counsel for the

claimants that the learned Tribunal has not awarded the

amounts in accordance with the settled decisions under other

heads and failed to deduct the amount from the earnings of

the deceased in accordance with the settled decisions of the

Apex Court and also failed to calculate the amount with

appropriate multiplier.

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10. On the other hand, the learned Standing Counsel

appearing on behalf of the Insurance Company, respondent

No.2 herein, has contended that the learned Tribunal had

rightly dismissed the claim petition against the Insurance

Company by placing reliance upon catena of decisions of

Andhra Pradesh High Court, Kerala High Court and

Allahabad High Court and had adequately granted the

compensation, as such, the same needs no interference by

this Court.

11. Heard learned counsel appearing on behalf of the

respective parties. Perused the impugned award passed by

the learned Tribunal as well as the evidence on record.

12. The questions, which are posed for consideration of this

Court in this appeal, are as follows:

(i). "Whether respondent No.2-Insurance Company would be liable to pay the compensation to the claimants under Section 163-A of the Act?

(ii). Whether the compensation awarded by the learned Tribunal is just and equitable"?

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13. 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 motorcycle and the insurer, which was being

driven by the deceased. Admittedly, the policy of insurance

was an Act policy. The claimants did not adduce any evidence

showing that the accident occurred in the course of the

employment of the deceased with respondent No.1-owner of

the vehicle or that under the terms and conditions of the

policy under which the offending vehicle was insured with

respondent No.2-Insurance Company, the risk of the

deceased is covered. On perusal of evidence on record, the

deceased cannot be said to be in employment of respondent

No.1-owner and, therefore, he can be said to be permissible

user and/or borrower of motor vehicle owned by respondent

No.1-owner.

14. The learned Tribunal had recorded a categorical finding

that the claimants failed to bring on record that the deceased

was a third party to Ex.B-1-Policy, which is an Act policy and

thus, respondent No.2-Insurance Company cannot be

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fastened with the liability to pay compensation and only

respondent No.1-owner of the offending vehicle, has to be

asked to pay the compensation to the petitioners.

15. In the case of Oriental Insurance Company Limited

and others vs. Ramalingam and others in C.M.A.Nos.1982

to 1984 of 2016 and C.M.P.Nos.14321 to 14323 of 2016

and 20793 to 20795 of 2016, decided on 17.03.2020, the

Madras High Court in Para No.8 made the following

observations:

"This Court is of the considered opinion that in an Act policy liability of the Insurance Company cannot be fixed. The Policy being a contract, the terms and conditions are binding on the parties that the claimants were travelling in the insured car, which met with an accident, then there is no reason to pass an order of pay and recovery against the Insurance Company. In all such cases the owner may be held liable and contrarily, as per the terms and conditions of the Act policy, the Insurance Company cannot be held liable. Then, the Tribunal committed an error in granting compensation in favour of the claimants and passing an order of pay and recovery and compensation is to be granted only against the owner of the vehicle and certainly not against the Insurance Company."

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16. In the present case, as observed hereinabove, since the

deceased cannot be said to be a third party to Ex.B-1-Policy,

the learned Tribunal has rightly observed and held that

respondent No.2-Insurance Company cannot be fastened with

the liability to pay the compensation and only respondent

No.1-owner has to be asked to pay the compensation to the

claimants. Therefore, this Court is of the considered opinion

that the impugned Award passed by the learned Tribunal in

so far as it relates to respondent No.2-Insurance Company, is

affirmed holding that respondent No.2-Insurance Company is

not liable to pay compensation to the claimants.

17. The case facts of Ramkhiladi and another vs. The

United Insurance Company and another in Civil Appeal

No.9393 of 2019 decided on 07.01.20220, which is relied

upon by the learned counsel for the claimants, are different

with the facts of the present case. Hence, the said decision is

not applicable to the present case.

18. In so far as the quantum of compensation is concerned,

in the claim petition, the learned Tribunal has applied

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multiplier according to second Schedule of Section 163-A of

the Act, and deducting one third amount as expenses to be

incurred on deceased during life time if he would be alive and