In The High Court Of Karnataka At Bengaluru DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Miscellaneous first Appeal No. 4634 OF 2010 (MV) Between:
THE DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY LIMITED MOSQUE ROAD, UDUPI NOW REPRESENTED BY D. KARTHIKA ADMINISTRATIVE OFFICER NATIONAL INSURANCE COMPANY LIMITED REGIONAL OFFICE M.G.ROAD, BENGALURU.
(BY SRI L. SREEKANTA RAO, ADVOCATE) And:
1. SUSHAN SHETTY SON OF CHANDRASHEKAR SHETTY AGED ABOUT 25 YEARS 2. SUKY SHETTY SON OF CHANDRASHEKAR SHETTY AGED ABOUT 29 YEARS BOTH ARE RESIDENT OF SRINIVASA NILAYA, BEEJADY VILLAGE KOTESHWARA POST, KUNDAPURA POST.
... APPELLANT ... RESPONDENTS (BY SRI NAGARAJA HEGDE, ADVOCATE FOR R.1, SRI ROHITH GOWDA, ADVOCATE FOR R.2) THIS MISCELLENEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF THE MV ACT AGAINST THE JUDGMENT AND AWARD DATED 4.3.2010 PASSED IN MVC NO.47/2005 ON THE FILE PRESIDING OFFICER, FAST TRACK COURT, KUNDAPURA, AWARDING A COMPENSATION OF RS.81,500/- WITH INTEREST @ 6% PER ANNUM FROM THE DATE OF PETITION TILL REALISAITON.
THIS MISCELLENEOUS FIRST APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THEOP FOLLOWING:
Judgment This appeal is by the insurer of motorcycle bearing registration No.KA-20-L-8626 calling in question the judgment and award dated 4.3.2010 in MVC No.47/2005 on the file of the Fast Track and Motor Vehicle Accidents Claims Tribunal, Kundapura (for short, ‘the Tribunal’).
2. The claimant (respondent No.1 in this appeal) filed the aforesaid claim petition in MVC NO.47/2005 seeking compensation asserting that he was traveling on the pillion of the motorcycle on 9.11.2004. The rider of the motorcycle was rash and negligent. Therefore, he could not avoid a cow crossing the road; he lost control over the motorcycle resulting in an accident in which he suffered injuries to his lower limb. The rider of the motorcycle, who is also the owner of the motorcycle, is the claimant’s brother. He did not contest the claim petition but, the insurer-appellant contested the claim petition. The insurance company contended that the accident was an act of god and the insurer would not be liable to pay compensation. This defence was in addition to the different grounds urged denying its liability.
3. The tribunal, on appreciation of the oral testimony of the claimant and PW.2- Doctor, the documentary evidence on record including the police records and the evidence of one of the officers of the insurer as well as the records in C.C.No.3261/2004, concluded that the accident was because the rider - respondent No.1 (respondent No.2 in this appeal) was negligent. The claimant, being a pillion rider, would be a third party, and as such, the insurance company will not be able to deny its liability. As regards quantum of compensation, the tribunal has awarded a total compensation of Rs.81,500/- under the following heads:
1 Pain and Suffering Rs.27,000/-
2 Medical Expenses Rs.21,950.11/-
3 Special nursing and attendant charges 4 Loss of income during treatment period Rs.1,500/- Rs.27,000/-
5 Loss of amenities Rs.3,000/-
6 Conveyance charges Rs.1,000/- Total Rs.81,450/- Rounded off Rs.81,500/-
4. The learned counsel for the insurer – appellant arguing in support of this appeal contended that the insurer could not have been fastened with the liability for the following reasons:
a) The evidence on record establishes that the claimant and the respondent No.1 (respondents in this appeal), who are brothers, have stage-managed the circumstances after the accident to make a wrong claim against the insurer. This is demonstrated by the fact that in the criminal proceedings initiated by the jurisdictional police for rash and negligent riding by the respondent No.2 and causing the accident, the respondent No.2 did not appear in person, but pleaded guilty through his leaned counsel. This very learned counsel has filed the claim petition on behalf of the claimant - respondent No.1. The tribunal ought to have examined these circumstances in deciding the liability on the insurer.
b) The insurer’s obligation is to indemnify the owner against the third party claim and to meet other contractual allegations. The claimant (respondent No.1), being the brother of the respondent No.1 (respondent No.2), would not be a third party. There is no contract between the insurer and the respondent No.1 to indemnify a family member, who would step into the shoes of the owner. As such, the insurer could not have been made liable to pay compensation.
5. Though the learned counsel for the appellant strenuously does not dispute that the motorcycle was covered under a Comprehensive Policy nor does he dispute that the Hon’ble Supreme Court in the recent decision in National Insurance Company Limited reported in (2013) 1 SCC 731 has held that in cases of Comprehensive Policy, an insurer cannot avoid its liability to a pillion rider. The claimant and the respondent No.1 are brothers, and only because they are brothers, it cannot be held that the claimant-pillion rider would step into the shoes of the insured. The claimant would be a third party, and in which event, the insurer would be liable to pay compensation. Therefore, this limb of the argument would not survive.
6. Further, the claimant in his cross examination has indeed admitted that his brother, the respondent No.1 pleaded guilty in the criminal proceedings because that would enable the claimant to seek compensation. But, this statement would not enable the insurer to avoid its liability especially when it is undisputed that the claimant was traveling on the pillion with his brother on 9.11.2004, the respondent No.1 in trying to avoid a cow crossing the road failed to control the two wheeler and the claimant suffered injuries. If these circumstances are undisputed, essentials to sustain a claim under Section 166 of the Motor Vehicles Act viz., the road accident resulting in injury to the claimant because of the negligence of the rider of the vehicle in a public place, are established. If these essentials are established, the insurer cannot be avoided unless one of the defences permissible under Section 149 of the Motor Vehicles Act is established. The insurer has not been able to establish such defence.
For the foregoing, the appeal is dismissed.
The amount in deposit, if any, be transmitted to the Tribunal for disbursement.
SA Ct:sr Sd/- Judge