Telangana High Court
Icici Lombard General Insurance ... vs A. Jyothi on 15 February, 2024
Bench: P.Sam Koshy, N.Tukaramji
IN THE HIGH COURT FOR THE STATE OF TELANGANA,
HYDERABAD
***
M.A.C.M.A.No.1831 of 2018
Between:
ICICI Lombard General Insurance Co.Ltd. rep. by its Area Manager,
Khairatabad,Hyderabad.
..Appellant/R-2
VERSUS
A.Jyothi and others
...Respondents
ORDER PRONOUNCED ON: 15.02.2024
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
____________________
N. TUKARAMJI, J
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* THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
+ M.A.C.M.A.No.1831 of 2018
% 15.02.2024
# Between:
ICICI Lombard General Insurance Co.Ltd. rep. by its Area Manager,
Khairatabad,Hyderabad.
..Appellant/R-2
VERSUS
A.Jyothi and others
...Respondents
! Counsel for Appellant/R-2 : Mr. Kota Subba Rao
^Counsel for the respondent(s) : Ms.D.Pramada
<GIST:
> HEAD NOTE:
? Cases referred
1
(2017) 16 SCC 860
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HONOURABLE SRI JUSTICE P. SAM KOSHY
AND
HONOURABLE SRI JUSTICE N. TUKARAMJI
M.A.C.M.A. No.1831 OF 2018
JUDGMENT:
(per H on'ble Sri Justice N. Tukaramji)
This appeal has been filed by the respondent No.2/insurer
assailing the decree and order dated 22.09.2017 in
M.V.O.P.No.172 of 2006 on the file of the Motor Accident
Claims Tribunal-cum-XIV Additional Chief Judge, City Civil
Court, Hyderabad.
2. We have heard Mr. Kota Subba Rao, learned counsel for
the appellant/respondent No.2/insurer and Ms. D. Pramada,
learned counsel for the respondents/petitioners.
3. Briefly stated the case of the respondents 1 to 4/claim
petitioners (hereinafter 'the petitioners') is that on 12.08.2005
while A.Srinivas Rao/deceased as driver along with wife, son,
mother and one Ravi Kumar were proceeding in a car bearing
No.AP15P0666 (for short, 'the car') and when they reached
113/2 KM on Rajiv Rahadari one unknown motorcyclist
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suddenly came in opposite direction and in an attempt to avoid
collision the driver/deceased turned the car as a result it hit the
culvert and caused grievous injuries to all the inmates and on
26.10.2005 the driver/deceased succumbed. The wife, two sons
and father of the deceased filed petition under Section 166 of the
Motor Vehicles Act (for short, 'the Act') pleading loss of
dependency for compensation of Rs.One Crore. The tribunal
after due enquiry awarded Rs.27,45,600/- with interest at 6% per
annum from the date of the petition till realization by holding
that the owner of the car/insured and insurer/respondents 1 and
2 are jointly and severally liable to pay compensation.
4. The contest of the appellant/insurer/respondent No.2
(hereinafter 'the insurer') is that the tribunal failed to consider
the fact that the accident occurred due to self negligence of the
deceased. As such the insurer cannot be held liable to indemnify
the insured to pay compensation for the self negligence of the
insured. This principle has been fortified by the Hon'ble
Supreme Court in Oriental Insurance Company Limited v.
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Meena Variyal and others - 2007(5) SCC 428. Further pleaded
that in Surender Kumar Arora and another v. Dr. Manoj Bisla
and others - 2012 ACJ 1305 it was held that once the victim or
the dependants have opted to proceed under Section 166 of the
Act or 163-A the burden of proving the negligence or otherwise
would be on the claimants. That apart, the tribunal ought to have
considered that, the deceased being a business person, his demise
would only affect the supervisory services. Further considering
the income out of fixed assets as loss of income is improbable.
The amounts granted under conventional heads are beyond the
directives prescribed in the dictum of National Insurance Company
Ltd. vs. Pranay Sethi and others1.
5. Learned counsel for the petitioners would submit that the
accident occurred while attempting to avert the accident.
However as the rash and negligent driving of the car has been
concluded by the materials on record, the tribunal determining
the compensation taking the income into account and other
(2017) 16 SCC 860
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aspects placed on record is perfectly justified. Therefore, there is
no tenable reason for interference.
6. The pleadings of the parties are considered and the
materials on record are perused.
7. The petitioners' case is that, the accident occurred while
the deceased was driving the vehicle and it has been specifically
pleaded that in an attempt to avoid the accident with the
motorcycle the accident occurred. Thus as per the petitioners
there was no rash or negligence on the part of the deceased.
Howsoever the police in the final report/Ex.A-4 concluded that
the accident was due to rash and negligent driving of the driver
of the car i.e. the deceased.
8. Section 166 of the Act provides for compensation on fault
liability wherein the burden lies on the petitioners to prove
negligence on the part of the driver who caused the injuries or
the death. In the present case, the deceased as driver on his own
negligence caused the accident and suffered death. Therefore,
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for the negligent driving of the tortfeasor himself, his dependants
are claiming compensation. Further it is clear by the record that
vehicle belongs to the respondent No.5/respondent No.1 was
borrowed by deceased. Therefore, the deceased also steps into
the shoes of the owner. Under law, the tortfeasor's liability
would be vicariously fastened to the owner and in consequence
to his indemnifier/insurer. Accordingly, in the first place, the
deceased himself as tortfeasor would be liable. Thereafter the
deceased in vicarious position in the footing of the
owner/insured would also liable, as such asking the insurer to
indemnify for the wrong done by himself under fault liability is
evidently untenable. Further the Hon'ble Apex Court in
Oriental Insurance Co.Ltd. v. Rajni Devi (2008) 5 SCC 736 and
Oriental Insurance Co.Ltd. v. Jhuma Saha (2007) 9 SCC 263, in
so far as no fault liability under Section 163-A of the Act, held
that under this provision, the liability is on the owner of the
vehicle. As a person cannot be both a claimant and also a
recipient, the heirs of the owner could not have maintained the
claim under Section 163-A of the Act.
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9. That being the legal position, the claim petition for
compensation either under the Section 166 or 163-A of the Act
filed by the dependants of the deceased is not maintainable.
10. In this view, the petitioners claim would
remain as one by the owner/insured and the liability of the
insurer would be in terms of the contractual obligations in the
insurance contract, as held by the Hon'ble Apex Court in
National Insurance Co.Ltd. v. Ashalatha Bowmik (2008) 9 SCC
801 and Ramkhiladi and others v. United India Insurance
Company Ltd. and another (2020) 2 SCC 550.
11. A perusal of the Schedule of the insurance policy/Ex.B-1,
is making clear that the personal accident of the owner-cum-
driver is insured for a sum of Rs.2,00,000/-. Though the
petitioners' claim either under Section 166 or 163-A of the Act,
the own negligence is not maintainable, as per the insurance
contract the insurer stands liable to the sum assured for personal
accident of the owner-cum-driver and the petitioners are entitled
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for that amount. Accordingly the liability of insurer shall be
limited to Rs.2,00,000/-.
12. For the aforesaid, the appeal is partly allowed and the
petitioners are granted a sum of Rs.2 lakhs (Rupees two lakhs
only) with interest at 7.5% per annum from the date of the
petition till realization. The ratio of apportionment of
compensation amount among the petitioners shall remain as per
the impugned award. The insurer is directed to deposit the
awarded amount within four weeks from the date of receipt of a
copy of this order. No costs.
As a sequel, pending miscellaneous petitions if any, stands
closed.
________________
P. SAM KOSHY, J
________________
N.TUKARAMJI, J
Date:15.02.2024
ccm
