Bhagya P. and Others vs Ravi and Others

B. Manohar, J.—The claimants have filed this appeal, being aggrieved by the judgment and award dated 2nd January 2010 made in MVC No. 111/2006 passed by the Fast Track Court and Additional Motor Accidents Claims Tribunal, at Bhadravathi (hereinafter referred to as ''the Tribunal'' for short), wherein the Tribunal had dismissed the claim petition filed by the appellants..

The appellants are the wife and children of late Kumar who died in the road traffic accident occurred on 04-12-2005. In the claim petition, it was contended that on 04-12-2005, deceased Kumar was proceeding in a TVS Victor bike bearing registration No. KA-14/R-3019 towards Aralikoppa Village. When he reached Channel Bridge, a dog suddenly crossed the road. To avoid the said dog, the deceased Kumar applied sudden break and fell down from the motor bike and sustained grievous injuries. Immediately, he was taken to the Government Hospital at Bhadravathi, but he died on the way to Hospital. At the time of death, the deceased was aged about 40 years and he was an agriculturist by profession. The wife and children of the deceased have lost the bread earner of the family, hence sought for compensation of Rs. 12,25,000/-.

The respondents 1 and 2 were served with notice. The first respondent in his statement of objections contended that on 04-12-2005 at about 6.00 p.m., he had parked his TVS Victor motor bike in front of the house of the deceased Kumar and the deceased had taken his vehicle informing him that he would visit his relatives at Aralikoppa village. Later on, he came to know about the accident near Channel bridge and also that the deceased died on the way to the hospital. He contended that the vehicle is duly insured with the second respondent-Insurance Company. Hence, sought for dismissal of the claim petition as against the first respondent.

The second respondent-Insurance Company in their written statement denied the entire averments made in the claim petition and also contended that the claim petition filed under Section 163-A of the Motor Vehicles Act, 1989 is not maintainable. The court has no jurisdiction to entertain the claim petition against the second respondent, since the deceased Kumar is not a third party and he was a rider and Tort Feasor. The insurance policy does not cover the risk of the rider of the motor cycle. The rider of the motorbike was not having valid and effective driving license at the time of accident. There is violation of policy conditions. Hence, sought for dismissal of the claim petition as against the second respondent.

On the basis of the pleadings of the parties, the Tribunal framed necessary issues. The first claimant in order to prove the case examined herself as P.W. 1 and got marked the documents as Ex. P1 to Ex. P5. The first respondent, owner of the vehicle got examined himself as R.W.1. An Officer of the second respondent-Insurance Company was examined as R.W.2 and got marked the document as EX.R1.

On the basis of the oral and documentary evidence let in by the parties, the Tribunal held that the deceased Kumar died in the road traffic accident occurred on 04-12-2005 at about 6.30 p.m. The Bhadravathi Rural Police have registered a case in Crime No. 283/2005 against the deceased for the offences punishable under Section 279 , 304(A) of IPC. The Tribunal had taken the income of the deceased at Rs. 2,500/- p.m. and deducted 1/3rd towards personal expenditure. At the time of death, the deceased was aged about 40 years, hence applying the multiplier 15, the Tribunal assessed the loss of dependency at Rs. 2,99,999/- and also assessed a sum of Rs. 5,000/- towards funeral expenses and Rs. 2,000/- towards loss of estate. With regard to entitlement of compensation is concerned, the Tribunal held that due to the negligence on the part of the rider of the motorbike the accident had occurred. Further, the deceased Kumar had borrowed the vehicle from the first respondent. He is not the registered owner of the vehicle. The Police have registered FIR against the deceased himself. Further, the insurance policy covers only the risk of the third party and not the rider of the motor bike. Since the deceased Kumar is not a third party and has stepped into the shoes of owner of the vehicle, only the registered owner of the vehicle can claim compensation under Section 163-A of the Act and not the person who borrowed the vehicle from others. Further, the vehicle has not dashed against any other vehicles, due to the negligence on the part of the rider himself, the accident had occurred and the rider died. Hence, the claimants are not entitled for any compensation. Relying upon the judgment of the Hon''ble Supreme Court reported Ningamma and Another Vs. United India Insurance Co. Ltd., , the Tribunal dismissed the claim petition by its judgment and award dated 2nd January 2010. The claimants being aggrieved by the judgment and award passed by the Tribunal, Bhadravathi have filed this appeal.

Sri. R. Gopal, learned counsel appearing for the appellants contended that the judgment and award passed by the Tribunal dismissing the claim petition filed under Section 163-A of the Motor Vehicles Act is contrary to law. Under Section 163-A of the Act, a special provision has been made for payment of compensation on structured formula basis, the owner of the motor vehicle of the authorized insurer shall be liable to pay in case of death or permanent disablement due to the accident arising out of the use of motor vehicle as indicated in the II Schedule. Under the said provision, the claimant would not be required to plead or establish that the death or permanent disablement in respect of which, the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle concerned or any other person. In the instant case, while the deceased Kumar was proceeding in a motorbike near Channel Bridge, a dog suddenly crossed the road. In view of sudden application of break, the deceased Kumar fell down and sustained grievous injuries and succumbed to injuries. The claimants are entitled to claim compensation under Section 163-A of the Act. In support of his contention, he relied upon the judgment reported in National Insurance Company Ltd. Vs. Sinitha and Others, .

Sri. M.U Poonacha, learned counsel appearing for the second respondent argued in support of the judgment and award passed by the Tribunal and contended that the deceased was not the registered owner of the vehicle. It is an admitted fact that the deceased had borrowed the vehicle from the first respondent and on the way to Aralikoppa village, he met with an accident and sustained grievous injuries and succumbed to the same. He was not a third party to claim compensation either under Section 167 or under Section 163-A of the Act. Further the insurance policy of the vehicle does not cover the risk of the rider of the motor cycle. The Tribunal, taking into consideration judgment of this Court reported in The Oriental Insurance Co. Ltd. Vs. Smt. Mahabunni and Shri. Mohamed Rafiq, and also judgment of the Hon''ble Supreme Court in NINGAMMA Case dismissed the claim petition. There is no infirmity or irregularity in the judgment and award passed by the Tribunal and sought for dismissal of the appeal.

I have carefully considered the arguments addressed by the learned counsel for the parties, perused the judgment and award, oral and documentary evidence adduced by the parties.

The evidence of P.W.1 clearly disclose that on 04-12-2005 at about 6.30 p.m., the deceased Kumar borrowed the TVS Victor Motor cycle from the first respondent and proceeded towards Aralikoppa village. In view of sudden crossing of the dog near Channel Bridge, the deceased fell down and sustained grievous injuries. However he died while on the way to hospital. This fact is not disputed by both the parties. The dispute is with regard to liability of the Insurance Company to compensate the claimants. The case of the Insurer is that the insurance policy of the vehicle does not cover the risk of the rider of the motorcycle. In the accident none of the other motor vehicles was involved. Due to the negligent riding of the motor bike by the deceased himself, he fell down and sustained grievous injuries and succumbed to same. The police have registered a case against the rider of the motor bike. Since the deceased was not a third party, the claimants are not entitled to claim compensation. The similar issue which is raised in this appeal was considered by this Court in the judgment reported in The Oriental Insurance Co. Ltd. Vs. Smt. Mahabunni and Shri. Mohamed Rafiq, . In paragraph 14 of the said judgment, this Court has held as under:

"It is not possible to envisage that Section 163-A is a departure from the concept of tortious liability. The non obstante clause incorporated in the Section does not alter the legal basis on which a liability arises under Section 147 of the Act nor does it provide a different basis for the same. It would not permit even the tort-feasor to claim compensation on the principle of no fault liability. As held by the Apex Court in Oriental Insurance Company Limited v. Hansrajbha V. Kodala, the non-obstante clause simply excludes determination of compensation on the principle of fault liability. The provision does not permit a person to place a premium upon his own fault and make the Insurance Company pay for the same."

In the said case, the brother of the insured was using the vehicle for his own purpose.

Further, the Hon''ble Supreme Court in NINGAMMA case (Supra) held as under:

"The Parliament by introducing Section 163-A in the MVA provided for payment of compensation on structured formula basis by mandating that the owner of a motor vehicle or the authorized insurer would be liable to pay compensation, as indicated in the II Schedule in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, to the legal heirs or the victim, as the case may be in a claim made under Sub-section(1) of Section 163-A of the MVA. In order to prove a claim in this nature, the claimant would not be required to plead or establish that death or permanent disability in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle concerned.

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But, fit is proved that the driver is the owner of the motor vehicle, in that case, the owner could not himself be a recipient of the compensation as the liability to pay the same is on him. This proposition is absolutely clear on the reading of Section 163-A of the MVA. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not claim compensation under Section 163-A of the MVA."

In the instant case, the deceased was not the owner of motor bike in question. He borrowed the said motor cycle from the first respondent. The deceased cannot be held to be an employee of the owner of the motor cycle although he was authorized to ride the said motor cycle by the owner. Therefore, he would step into the shoes of the owner of the motor bike.

The judgment relied upon by Sri. R. Gopal, in NATIONAL INSURANCE COMPANY v. SINITHA AND OTHERS is not applicable to the facts of the present case. In the said case, the registered owner of the motor cycle along with a pillion rider was proceeding towards a narrow bridge. In order to give way to the on coming vehicles, he dashed against the laterite stone lying on the Tar road, fell down and died, whereas the pillion rider sustained grievous injuries. In the said judgment, the Tribunal had awarded compensation which was upheld by the High Court as well as the Hon''ble Supreme Court. In the instant case, the deceased was not the registered owner of the motor bike and he had borrowed the vehicle from the first respondent to proceed towards Aralikoppa village. He died on the way to Hospital. Hence the judgment relied upon by Sri. Gopal is not applicable to the facts of the present case, in view of the authoritative pronouncement of law by this Court as well as the Hon''ble Supreme Court referred to above. The claimants are not entitled to any compensation.

I find no infirmity or irregularity in the judgment and award passed by the Tribunal dismissal the claim petition relying on the various judgments of various High Courts and the Hon''ble Supreme Court. Accordingly, the appeal is dismissed.