K Purushottam Rama Sharma, ... vs G Subramanya Prasad, Hyderabad ...
2023 Latest Caselaw 1680 Tel

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

                      + MACMA No.1067 of 2017


% 19-04-2023

     # 1. K.Purushottam Rama Sharma,
     S/o late Suryanarayana,
     Aged 54 years,
     R/o. H.No. 9-54/2, Venkateshwaranagar,
     Malkajgiri, Hyderabad
                             ... Appellant/Claimant


                                      Vs.

     $ 1. G.Subramanya Prasad, S/o. late G.V.N.Murthy,
     R/o 306, A-Block, Near Sridevi Theatre,
     Hyderabad.

     2. The Oriental Insurance Company Limited,
     Rep. by its Regional Manager,
     Snehalatha Buildings, Near CM Camp Office,
     Greenlands, Begumpet, Hyderabad - 16.
     Palika Suribabu, S/o Late Lovaraju

                                           ... Respondents/Respondents


! Counsel for the Appellants: T VISWARUPA CHARY

 Counsel for Respondents : T RAMULU

< Gist:


> Head Note:

? Cases referred:
  1) 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
  2) Ramkhiladi and another vs. The United Insurance Company and another in Civil
     Appeal No.9393 of 2019 decided on 07.01.20220
                                2
                                                           MGP, J
                                                  Macma_1067_2017

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

                M.A.C.M.A. No.1067 of 2017

JUDGMENT:

This appeal is preferred by appellant/claimant,

questioning the award and decree, dated 07.04.2016 passed

in M.V.O.P.No.1478 of 2013 on the file of the Chairman,

Motor Accident Claims Tribunal-cum-X Additional Chief

Judge, City Civil Court, Hyderabad (for short, "the Tribunal").

2. For the sake of convenience, the parties have been

referred to as arrayed before the Tribunal.

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

nutshell, are as under:

The claimant, who is the husband of one K.M.Valli

(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.9,00,000/- for the death of the deceased in a vehicular

accident, which occurred on 03.01.2013. It is stated that on

the fateful day, at about 10:15 p.m., while the deceased, along

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with her husband, was proceeding on a motor cycle bearing

No. AP 28 AT 1358, owned by respondent No. 1, insured with

respondent No. 2, being driven by its rider, from Chanda

Nagar to Malkajgiri and when she reached near AOC Centre,

the said motor cycle over turned. As a result, she fell down

and sustained fatal injuries and she succumbed to the

injuries while undergoing treatment in the hospital.

According to the claimant, the deceased was aged about 49

years and earning Rs.12,000/- per month as a chef/cooking

supervisor and used to contribute her entire earnings. The

deceased used to contribute her entire earnings for the

welfare of her family, but due to the sudden and untimely

death of the deceased, the claimant lost his bread winner,

love and affection besides losing future earnings and

dependency on the deceased. Therefore, the claimant has

claimed Rs.9,00,000/- as compensation against the

respondent Nos. 1 & 2, who are the owner and insurer of the

motor cycle respectively.

4. Before the Tribunal, while respondent No.1 remained ex

parte, respondent No.2-Insurance Company has resisted the

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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 the rider of the offending vehicle i.e., motor cycle does not

possess valid driving licence at the time of the accident and

violated the terms and conditions of the policy. Therefore,

respondent No.2 is not liable to pay any compensation to the

claimant.

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.3,89,000/- 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 claimant seeking enhancement of

compensation payable by respondent Nos.1 and 2 jointly and

severally.

MGP, J Macma_1067_2017

6. Learned counsel for the claimant has vehemently

submitted that the Tribunal erred in holding that the

insurance company is not liable to pay the compensation to

the claimant on the ground that Exs.B.1, certified copy of

Insurance Policy, is only an Act policy and no extra premium

was paid to cover the risk of owner or his agent and as the

claimant has 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

claimant. The learned counsel further submitted that the

claim petition preferred by the claimant 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 claimant 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 lastly submitted by the

learned counsel for the claimant that the claim petition filed

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by the claimant 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 maintainable against the

owner and insurer of the motor cycle, as the deceased was a

pillion rider, 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. He further contended that the

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.

7. On the other hand, the learned Standing Counsel

appearing on behalf of the Insurance Company, respondent

No.2 herein, contended that the Tribunal had rightly

dismissed the claim petition against the Insurance Company

by placing reliance upon catena of decisions of Andhra

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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.

8. Heard learned counsel appearing on behalf of the

respective parties. Perused the impugned award passed by

the Tribunal as well as the evidence on record.

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

Court in this appeal, are as follows:

a. "Whether respondent No.2-Insurance Company would be liable to pay the compensation to the claimant under Section 163-A of the Act?

b. Whether the compensation awarded by the Tribunal is just and equitable"?

10. 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, as the deceased

was a pillion rider. 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

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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, she can be said to be permissible

user and/or borrower of motor vehicle owned by respondent

No.1-owner.

11. The learned Tribunal had recorded a categorical finding

that the claimant 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

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 petitioner.

12. 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:

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"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."

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

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

the 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 claimant.

Therefore, this Court is of the considered opinion that the

impugned Award passed by the 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 claimant.

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14. 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 claimant, are different

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

not applicable to the present case.

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

in the claim petition, the learned Tribunal has applied

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 she was alive and

then the tribunal calculated compensation accepting notional

income of deceased person, as claimant cannot prove the

income of deceased person by concrete and reliable evidence.

16. Under these circumstances, this Court is of the

considered view that the Tribunal has not committed any

error or illegality in applying multiplier according to Second

Schedule of Section 163-A of the Act, and deducting one third

amount to be incurred on deceased and then calculating

amount of compensation considering the age of deceased. The

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findings recorded by the Tribunal in above claim petition do

not suffer from any illegality, error or factual in accuracy.

Hence, the appeal is liable to be dismissed.

17. In the result, the M.A.C.M.A. stands dismissed

confirming the award and decree passed by the learned

Tribunal in all respects. No costs.

Pending Miscellaneous Applications, if any, shall stand

closed.

______________________________ JUSTICE M.G. PRIYADARSINI

Date:19.04.2023 gms/tsr

MGP, J Macma_1067_2017

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

M.A.C.M.A. No.1067 of 2017

DATE: 19-04-2023

gms/tsr