Telangana High Court
Bajaj Alliance General Insurance Co. ... vs Sathuluri Pullamma on 12 June, 2025
THE HON'BLE SRI JUSTICE NARSING RAO NANDIKONDA
M.A.C.M.A.No.376 of 2020
JUDGMENT:
The appellant-Insurance Company filed the present appeal against
the Award and decree passed by the IV Additional District and Sessions
(II FTC) Judge, Nalgonda (hereinafter referred to 'learned Tribunal') in
M.V.O.P.No.999 of 2013, dated 28.02.2020, wherein claimants/
respondents herein had filed the claim petition, seeking compensation
of Rs.6,00,000/-.
2. Heard Sri A.Ramakrishna Reddy, learned counsel for the
appellant/petitioner-Bajaj Alianz General Insurance Company and Ms.
Annapurna Sreeram, learned counsel for the respondents. Perused the
material on record.
3. For the sake of convenience, the parties will be hereinafter referred
to as they are arrayed before the learned Tribunal.
4. The brief facts of the case are that claimants filed M.V.O.P.No.999
of 2013 under Section 166 of Motor Vehicle Rules 1989 of the M.V.Act,
1988 seeking compensation for the death of the S.Suresh (hereinafter
referred as 'deceased') who died in the accident on 17.09.2013.
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5. It is contended that on 17.09.2013, the deceased along with his
co-worker while proceeding on Pulsar Motorcycle bearing No.AP-28-BV-
4043 and when he reached at the outskirts of Aitipamula Village at
about 2.30 A.M. due to lighting focus of opposite vehicles, the deceased
could not observe the road divider and dashed motorcycle to the divider,
as a result, the deceased fell down and sustained grievous injuries on
chest, head and other vital parts of the body and died on the spot. The
Police registered a case in Crime No.141 of 2013 under Section 304-A
and 337 of IPC against the rider of the motor cycle i.e., deceased. The
claimants claimed an amount of Rs.6,00,000/- as compensation for the
death of the deceased under various heads.
6. The contention of the claimant before the Tribunal, was that as on
the date of accident the deceased was aged about 28 years and was
earning Rs.12,000/- per month by working as Welder in Infotech
Company. Due to the said accident, the petitioners lost their
dependency.
7. Before the learned Tribunal, respondent No.1-owner of the lorry
remained ex-parte. Respondent No.2 - Bajaj Alianz General Insurance
Company, filed counter-affidavit, denying all the averments made in the
claim petition, including the manner in which the accident took place,
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age, avocation and income of the deceased and submitted that deceased
was the rider of the motorcycle and the risk is was not covered under
the insurance company and further contended that deceased himself
being the rider stepped into the shoes of the owner as such he cannot
be said to be a third party within the meaning of M.V.Act. For self
negligence no amount of compensation is liable to the paid and the
provisions of Section 134 (c) and 158 (6) of M.V.Act were not complied
and further contended that the compensation claimed was excessive
and prayed to dismiss the claim petition.
8. Basing on the pleadings and averments made by both the
counsels, the learned Tribunal framed the following issues which reads
as under:
i) Whether the deceased by name S.Suresh died in accident due to rash
ad negligent driving of driver of motorcycle bearing No.ap-28-BV-4043
ii) Whether the petitioner are entitled for compensation. If so, to what
amount and from whom?
iii) To what relief?
9. During the course of enquiry, PW1 was examined and got marked
Exs.A1 to A5, on behalf of petitioner. R.W.1 was examined and Exs.B1
to B3 was marked, on behalf of respondent No.2
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10. After perusing the oral and documentary evidences and after going
into the entire record and the evidence placed by both the parties, the
learned Tribunal allowed the claim in part and granted compensation of
Rs.7,04,678/- along with interest @ 7.5% per annum.
11. Being unsatisfied and aggrieved by the compensation amount
awarded by the learned Tribunal, the present appeal is filed by the
appellant/Insurance Company on the grounds among the other grounds
are that the claimants filed the claim petition under Section 166 of the
M.V.Act, 1988 but, the learned Tribunal has treated the petition was
filed under Section 163-A of the Act and awarded compensation.
Learned counsel for the appellant, further contended that the deceased
was driving the crime vehicle motorcycle under the instruction of
Owner/Insurer who was travelling as pillion rider on the same
motorcycle at the time of the accident, in this regard, as per the settled
law, when a person drives a vehicle with the consent and under
instructions of Owner of the said Vehicle, such person for all practical
purposes steps into the shoes of the owner and cannot be considered as
third party for the purpose of claiming compensation under Section
163-A of the M.V.Act.
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12. Learned counsel for the appellant further contended that the
Tribunal erred in quantification of the compensation and failed to note
that it has no jurisdiction to decide the matter both under Section 163-
A and 166 of the M.V.Act and the Tribunal having considered the claim
petition under Section 163-A, then the Tribunal ought to have awarded
the compensation in accordance with the law laid down under
Schedule-II of the M.V.Act and erred in taking future prospectus of 40%
and granted an amount of Rs.70,000/- under conventional heads which
is contrary to the Schedule-II of the Act and prays this Court to set-
aside the Award and Decree passed by the Tribunal and allow the
present appeal.
13. Learned counsel for the appellant also relied on the judgments
passed by the Hon'ble Supreme Court in i) Ningamma and another
Vs. United Insurance Company Linited 1 ii) Deepal Girish Bhai Sony
Vs. United India Insurance company 2 iii) Ramkhiladi Vs.United
India Insurance Company & Another's 3.
14. Learned counsel for the respondents submits that has contended
that considering the oral and documentary evidence, the tribunal has
2009 ACJ 2020
2004 (5) SCC 385
2020 AIR (SC) 527
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rightly awarded the compensation of Rs.7,04,678/- which is just and
reasonable and needs no interference by this Court.
15. Admittedly, the claimants have not filed cross-appeal against the
Award and decree passed by the Tribunal. As such, the claimant is
satisfied with the Award and decree and the compensation awarded by
the Tribunal.. The only point arose before this Court in this appeal is
that:
"i) Whether the Tribunal had rightly considered the claimants
petition filed under Section 166 read with Section 455 of Motor
Vehicle Rules 989 of MV Act 1988 and awarded just compensation.
ii) Whether the petitioner is entitled for the compensation in view of
the self made accident and self negligence."
16. The Tribunal in the judgment held that insurance company
cannot be permitted to defeat the claim of the claimants merely because
of the wrongful act or negligence basing on the judgment of Hon'ble
Apex Court in Deepal Giris Bhai Sony Vs. United India Insurance
Company Limited 4. On a perusal of the judgment passed by the
Hon'ble Supreme Court, in the last operative portion has stated that
"This order shall not be treated as a precedent." In view of the
same, the judgment which is cited by the Tribunal would clearly shows
2004 (5) ALD 11 SC
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that the Tribunal has miss the sight of the said line which is mentioned
in the said Apex Court judgment, hence the Deepal Giri Bhai Sony
judgment (cited supra) will not be applicable for coming to an
conclusion that the Insurance company is liable to pay compensation to
the claimants on the self negligence by the deceased.
17. The deceased dashed motor cycle to the divider and died on spot.
Admittedly, there is no vehicle involved in the accident except the
vehicle on which the deceased was travelling. In Ningamma v. United
Indian Insurance Company Limited (cited supra), the Apex Court
discharged the liability of the insurance company in a case where the
driver is a representative of the owner and driving the vehicle under the
owner's instructions or permission and is thus owner and not a third
party. The Apex Court by referring the principle laid down in several
other cases, more particularly, in the judgment of New India
Assurance Company Limited v. Sadanand Mukhi 5, it was held that
neither 163-A, nor 166 would be applicable, if the rider is not a third
party and the Apex Court came to a conclusion that Insurer is not liable
to pay the compensation.
(2009) 2 SCC 417
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18. In view of above judgments discussed above, it can be safely
concluded that the deceased is not third party as he stepped into the
shoes of owner and by applying the principle held by the Apex Court in
Sadanand Mukhi (cited above), hence the Insurer is not liable to pay
compensation, since deceased is not a third party as per the provisions
of the M.V. Act, 1988.
19. Accordingly, the appeal is allowed and the Award and Decree dated
28.02.2020 passed by the IV Additional District and Sessions (II FTC)
Judge, Nalgonda in M.V.O.P.No.999 of 2013, dated 28.02.2020 are
hereby set aside in so far as the appellant - Insurance Company is
concerned. The appellant - Insurance Company is at liberty to take
appropriate steps to recover the compensation amount if already paid to
the claimants in accordance with law. There shall be no order as to
costs.
20. Miscellaneous petitions, if any are pending, shall stand closed.
_________________________________
NARSING RAO NANDIKONDA, J
12.06.2025
SHA
