IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JANUARY 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV M.F.A. No.3311/2009 (MV) Between:
The Oriental Insurance Co. Ltd., Regional Office, No.44-45, Residency Road, Bangalore – 560 025.
By its Manager. ... Appellant (By Sri R.Rajagopalan, Advocate) And:
1. Smt. Pani Devi, Aged about 44 years, W/o Bhanwarlal, R/at No.57/2, 1st Cross, 2nd Main, Chamarajpet, Bangalore – 560 018.
2. Sri. N.Bhanwarlal, Major, S/o Late Gigaramji, No.129, Bellur, 6th Block, Nagamangala Taluk, Mandya District. …Respondents (By Sri A.K.Bhat, Advocate for Sri N.S. Bhat, Advocate for R-1; R-2 is served and unrepresented) **** This M.F.A. is filed under Section 173(1) of Motor Vehicles Act, 1988, against the judgment and award dated 19.12.2008 passed in MVC No.9021/2007 on the file of the XVI Additional Judge, Court of Small Causes, Member, MACT, Metropolitan Area, Bangalore (SCCH No.14), awarding a compensation of Rs.4,52,500/- with interest @ 6% p.a. from the date of petition till realization.
This M.F.A. having been heard and reserved on 12.12.2018 and coming on for pronouncement of judgment, this day, the Court delivered the following:
J U D G M E N T The appellant–Insurance Company has challenged the judgment and award dated 19.12.2008 passed in MVC.No.9021/2007 whereby the liability was fastened on the insurer jointly and severally along with the owner and whereby the claim was required to be satisfied by the insurer.
2. The parties are referred to as per their ranking before the Tribunal.
3. The facts leading to the claim petition are that the deceased Rajesh @ Agalecha met with a road traffic accident that took place on 6.3.2005 when the deceased was riding a motor cycle bearing No.KA-11-J-7005, proceeding towards Bellur from Bellur Cross on Tumakuru-Mysuru Road, when a Bajaj Chetak Scooter bearing No.KA-27-H-1845 allegedly being driven in a rash and negligent manner collided with Rajesh’s motorcycle. Rajesh suffered grievous injuries and later succumbed to the same and died. Claim petition came to be filed by the mother of the deceased Rajesh under Section 163-A of the Motor Vehicles Act, 1988 (‘the Act’ for brevity) seeking for compensation and in the said petition, the insurer was arrayed as respondent No.2, while the father was arrayed as respondent No.1. It is relevant to note that the deceased Rajesh was driving the vehicle which belonged to his father.
4. Upon notice of the claim petition, the insurer filed its statement of objections contending that in fact the deceased Rajesh was riding the motorcycle in a rash and negligent manner and a charge sheet had been filed against the deceased, that the claim was not sustainable in the absence of arraying the owner and insurer of Bajaj Chetak Scooter which had collided with the motorcycle of deceased Rajesh, that there was suppression of facts, the claim had been lodged colluding with the respondent No.1, and that claim petition under Section 163-A of the Act was not maintainable. The Tribunal allowed the claim petition in part while awarding a compensation of `4,52,500/- to be payable with costs and simple interest of 6% per annum from the date of petition and providing that the award was to be satisfied by the insurer (respondent No.2) and respondent No.1 jointly and severally.
5. The insurer, aggrieved by the judgment and award of the Tribunal, has filed the appeal and reiterates in the grounds of appeal the same contentions raised in the statement of objections filed opposing the claim petition before the Tribunal. The arguments on behalf of the insurer have been advanced by learned Counsel Sri R. Rajagopalan.
The Insurer who is the appellant contends as follows:-
(i) Where two vehicles are involved in an accident, the insurer and the owner of other vehicle also ought to have been made as a party; that all the tortfeasors ought to have been impleaded by the claimant; that the burden was on the family of the deceased and the deceased himself as to under what circumstances vehicle was borrowed and these facts and clarifications ought to be placed by the family of the deceased;
(ii) As the vehicle belonged to the father, the deceased who is the son steps into the shoes of the owner of the vehicle and accordingly, no claim could be sustained as against the insurer by the owner himself under Section 163-A of the Act;
(iii) That there was negligence on the part of the rider of vehicle and as the son was riding the motor cycle in a rash and negligent manner, no claim would lie against the insurer for the negligence of a person claiming under the owner;
(iv) That Section 163-A of the Act would permit the claims being made by a third party and in the present case, the claim on behalf of the deceased, who is the son of the owner cannot be described to be a claim by a third party.
6. The respondents, who were the claimants were represented by learned counsel, Sri A.K.Bhat appearing on behalf of Sri N.S. Bhat and has advanced the following contentions:-
(i) Section 163-A(2) of the Act dispenses with the requirement to prove negligence.
(ii) The burden of proof as regards the assertion that the deceased (son) stepped into the shoes of the owner (father) was on the insurer and relies on the judgment in the case of NATIONAL INSURANCE COMPANY LIMITED. v. SINITHA AND OTHERS reported in AIR 2012 SC 797 and in particular, to the observations made in para-19, wherein the Apex Court observes that the onus to be discharged as regards such a contention was on the insurer.
(iii) Section 163-A of the Act commences with a non-obstante clause and hence, it would override stipulations under other provisions of the Act.
(iv) There is no obligation to have impleaded the owner and insurer of the other vehicle and the claimant could sue any one of the joint tortfeasors at his option and relies on the judgment of the Apex Court in the case of KHENYEI v. NEW INDIA ASSURANCE COMPANY LIMITED AND OTHERS reported in (2015) 9 SCC 273.
7. Heard both the learned counsel and the points that arise for consideration are as follows:-
(a) Whether the negligence of the claimant was of any relevance in a claim under Section 163-A of the Act?
(b) Whether the deceased, who is the son could be treated as a claimant through his legal representative in a claim petition under Section 163-A of the Act as against the insurer of the motorcycle he was riding?
(c) Whether the deceased stepped into the shoes of the owner in the facts of the present case disentitling relief vis-à-vis the insurer of the motorcycle that he was driving?
8. Having heard both the learned counsel as regards the rival contentions, the findings on the points of consideration are as under:-
Reg. point (a):-
There has been much argument advanced on the contention that the deceased himself having been negligent as is evidenced by the charge sheet filed, the claim petition at his instance, ought not to have been entertained. The Apex Court in the case of UNITED INDIA INSURANCE CO. LTD. v. SUNIL KUMAR AND ANOTHER reported in (2014) 1 SCC 680 while answering the question “whether in a claim proceeding under Section 163-A of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) it is open for the insurer to raise the defence/plea of negligence?” has categorically held that the insurer cannot be permitted to raise the defence of negligence on the part of the victim under Section 163-A of the Act. In view of this authoritative pronouncement on the question of law that had been referred, there is no necessity to refer to the judgments relied on by the insurer which are subject to the law as laid down in Sunil Kumar’s case (supra).
The contention as regards non-arraying of the insurer and the owner of the scooter which was the other vehicle involved in the accident is also liable to be rejected, as the claim in the present case is independent of the contributory acts of the other vehicle. However, as to whether a claim against the insurer of the vehicle in which the claimant himself was riding and its permissibility is a question that is dealt with infra.
Reg. point Nos.(b) and (c):
While the claimants assert that there is no bar to lodge a claim against the insurer of the motorcycle which the deceased was riding, the said contention has been opposed by the insurer.
Section 163-A of the Act starts with a non-obstante clause and has been inserted by the Amendment Act No.54 of 1994 and provides that the owner of the motor vehicle or authorized insurer would be liable to pay in case of death or disablement arising out of the use of the motor vehicle to the legal heirs of the victim. It presupposes that the claimant cannot be the owner, as regards the said proposition there is no dispute. However, it is the contention of the claimant that the claim is not by the owner. The insurer, however, states that deceased being the son steps into the shoes of the owner and hence, the claim is barred.
The insurer relies on the judgment of the Apex Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED v. SADANAND MUKHI AND OTHERS reported in (2009) 2 SCC 417, where in a similar fact situation, claim was lodged under Section 166 of the Act on behalf of the son of the insured where the deceased was riding the motorcycle belonging to his father and met with an accident trying to avoid a stray dog which had come in front of the vehicle, the Apex Court had rejected the claim petition. It was observed that there is no statutory coverage as regards the liability to compensate the driver or the owner of the motor vehicle and that such a liability would at best be covered by a specific contract that was contained in the policy by payment of additional premium. It ought to be noted that the said judgment was rendered in the context of a claim under Section 166 of the Act and indicates that the conclusion would have been different, if it were to be a claim under Section 163-A of the Act in light of the observation that:
“12. It is not a case where even Section 163- A of the Act was resorted to. The respondents filed an application under Section 166 of the Act…”
The Apex Court also refers to the provisions of Section 147 which no doubt governs the claim made under Section 166 and hence, the said judgment would not be applicable as regards the present facts. This becomes clear when the Court refers to the judgment in ORIENTAL INSURANCE CO. LTD. v. JHUMA SAHA reported in (2007) 9 SCC 263, where the Court holds that where the owner was to be blamed for the accident and the accident did not involve any other vehicle, such a claim preferred under Section 166 of the Motor Vehicles Act was not maintainable.
In the case of ORIENTAL INSURANCE CO. LTD. v.
RAJNI DEVI reported in (2008) 5 SCC 736, where the owner had died in an accident when he was riding the motorcycle, the question as to whether the claim under Section 163-A of the Act by the legal representatives would be maintainable came to be decided. The Hon’ble Supreme Court has observed as follows:-
“6. It is now well settled principle of law that in a case where third party is involved, the liability of the Insurance Company would be unlimited. Where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the insurance company would depend upon the terms thereof.”
In the same judgment, the Court appears to settle at rest controversy when it observes:
“10. The liability under Section 163-A of the Act is on the owner of the vehicle, as a person cannot be both, a claimant as also a recipient. The heirs of Janakraj could not have maintained a claim in terms of Section 163-A of the Act. For the said purpose, only the terms of the contract of insurance could be taken recourse to.”
In the light of the law laid down in the said case, it is now open to contend that the deceased could be treated to be a third party. The contention of the appellant that the claim under Section 163A being an independent claim with a non-obstante clause and hence, would be de hors to the restrictions under Section 147 and hence cannot be considered.
It would also be relevant to take note of the judgment dated 24.09.2018 passed MFA No.5537/2011 (MV) c/w MFA Nos.3182/2011 & 1658/2012, wherein the Co-ordinate Bench of this Court while deciding as to whether the rider of a two-wheeler not being a owner could claim compensation as third party, has negatived such a claim. Though the Counsel for the claimant states that the above judgment requires reconsideration, the said request does not require to be considered in light of the law laid down in Rajni Dev’s case (supra). This Court in the above case has conclusively settled the question of liability where the claim has been preferred under Section 163-A of the Act as follows:-
“35. To sum up, in the opinion of this Court, a claim petition seeking payment of compensation in a road accident, by the owner of the vehicle or by any other person driving the vehicle and not being an employee, is not maintainable under Section 163-A or Section 166 of the Motor Vehicles Act, before Motor Accident Claims Tribunal”.
The question as regards the circumstances under which the deceased was riding the motorcycle and as to whether the deceased was riding the motorcycle on the instructions of the father or had borrowed the motorcycle for his own purpose is a distinction without a difference, in the light of the law laid down in Rajni Devi’s case (supra).
9. The question as regards to burden of proof is also of no relevance in light of the conclusion and reliance placed on the judgment of the Apex Court. Accordingly, appeal is allowed and the claim petition is dismissed.
Sd/- JUDGE RS/VGR ct-mhp SSDYJ: M.F.A. No.3311/2009 16.01.2019 ORDER ON FOR BEING SPOKEN TO Though the order was passed on 04.01.2019, learned counsel for the appellant has now sought for clarification as regards refund of amount in deposit (statutory deposit by the appellant) In view of allowing of the appeal, the amount in deposit by way of statutory deposit is directed to be refunded and is permitted to be withdrawn by the appellant.
Sd/- JUDGE NR