Iffco Tokio General Insurance Company Limited vs P. Ranga Reddy and Others

R.S. Chauhan, J.—1. The M/s. IFFCO-TOKIO General Insurance Company Limited, the appellant, have challenged the legality of the award dated 10.11.2009, passed by Motor Accidents Claims Tribunal-V, Court of Small Causes, Bangalore City, whereby the learned Tribunal has granted a compensation of Rs. 3,65,900/- along with interest of 6% p.a. from the date of filing of the petition till the date of deposit in the Court to the claimants-respondents on account of death of one B. Harish Kumar.

Briefly the facts of the case are that on 8.3.2008, B. Harish Kumar @ B. Hari Prasad, was riding a Hero Honda motor cycle, bearing registration No. KA-03-EW-201, along with his friend. While they were proceeding in front of Balaji Wood Industries, Devarabisanahalli, the motor cycle skidded and B. Harish Kumar fell down from the motor cycle. At the fateful moment, an unknown lorry came from the opposite direction, in a rash and negligent manner, and ran over B. Harish Kumar''s head, thereby causing his instant death. Since the claimants, the parents of the deceased, suddenly lost their sole bread earner, they filed a claim petition before the learned Tribunal. After going through the oral and documentary evidence, the learned Tribunal has granted the compensation as aforementioned. Hence, this appeal by the Insurance Company.

Mr. D. Vijayakumar, the learned counsel for the Insurance Company has raised the following contentions before this Court: firstly that since the accident had occurred only due to the negligence of B. Harish Kumar, the Insurance Company cannot be held liable. In order to buttress this contention, the learned counsel has relied on the case of Appaji (since deceased) and Another v. M. Krishna and Another (, 2004 ACJ1289).

Secondly, according to the claimants-respondents, B. Harish Kumar was earning Rs. 6,000/- per month. Therefore, his annual income was more than Rs. 40,000/- p.a. Thus, the claim petition could not have been filed under Section 163-A of the Motor Vehicles Act, 1988 (''Act'' for short). Therefore, according to the learned counsel, the Tribunal was neither justified in entertaining the claim petition under Section 163A of the Act, nor justified in imposing the liability of payment of compensation on the Insurance Company.

On the other hand, Mr. N. Gopalakrishna, the learned counsel for respondent Nos. 1 and 2 has raised the following contentions before this Court: firstly relying on the case of National Insurance Company Ltd., v. Sinitha and others (, AIR 2012 SC 797), the learned counsel has pleaded that merely because the claimants claimed that B. Harish Kumar''s motor cycle had skidded, there is no presumption in law that the said motor cycle had in fact skidded due to the negligence committed by the rider of the motor cycle. Moreover, under Section 163-A of the Act, it is not the duty of the claimants even to establish that there was a ''fault'', Wrongful act'' or ''negligence'' on the part of the rider. He further pointed out that according to the decision of the Hon''ble Supreme Court in the case of Sinitha (supra), the burden of proof to establish that there was negligence on the part of B. Harish Kumar is squarely on the Insurance Company. However, the Insurance Company has not adduced any cogent evidence to establish the said fact. Moreover, according to the learned counsel, the case of Appaji (supra), does not come to the rescue of the appellant. For, in the said case, the negligence of the deceased was proved, whereas, in the present case, the negligence of the deceased was never proved by the Insurance Company.

Secondly, relying on the case of Guruanna Vadi and Another v. The General Manager, Karnataka State Road Transport Corporation and Another (, ILR 2001 KAR 2879), the learned counsel has pleaded that a learned Division Bench of this Court has clearly opined that in case the claimants were to notionally reduce the income to Rs. 40,000/- in order to present the claim petition under Section 163A of the Act, they can be permitted to do so. In the present case, although respondent No. 1 as P.W. 1 may have pleaded that the income of the deceased was Rs. 6,000/- per month, but nonetheless in the claim petition submitted by the respondents, they had clearly stated that the income of B. Harish Kumar was merely Rs. 3,250/-. Thus, they had notionally reduced the income to bring it within Rs. 40,000/-. Hence, according to the judgment of this Court in the case of Guruanna (supra), claim petition under Section 163-A of the Act is certainly maintainable. Therefore, the learned counsel for the respondents has supported the impugned award.

Heard the learned counsel for the parties, and perused the impugned award, and considered the case laws cited at the Bar.

In the case of Sinitha (supra), the Hon''ble Supreme Court has clearly opined that negligence is a factual issue that can only be established through cogent evidence. Moreover, since under Section 163-A of the Act, the Insurance Company or the owner is permitted to raise the defence of ''fault'' or ''negligence'' or ''wrongful act'', the burden of proof lies on the Insurance Company/owner to establish the same through cogent evidence. As in the present case, so in the case of Sinitha (supra), both, the learned Tribunal and the High Court had relied upon the FIR, the post-mortem certificate, the mahazar, the report of Motor Vehicle Inspector, the inquest report and the final report to conclude that "negligence" lay on the part of Shijo, the deceased in the said case. However, the Hon''ble Supreme Court concluded that such documents do not constitute proof of negligence at the hands of Shijo, the deceased.

Furthermore, the Hon''ble Supreme Court has opined as under:

"It has already been concluded hereinabove, that in a claim raised under Section 163A of the Act, the claimants have neither to plead nor to establish negligence. We have also held that negligence (as also, "wrongful act" and "default") can be established by the owner or the insurance company (as the case may be) to defeat a claim under Section 163A of the Act. It was, therefore, imperative for the petitioner-Insurance Company to have pleaded negligence, and to have established the same through cogent evidence."

In the present case, except relying on certain documentary evidence, as mentioned above, the appellant-Insurance Company has not produced any cogent evidence to establish the fact that the negligence was that of B. Harish Kumar. Merely because the motor cycle had skidded, a presumption cannot be drawn that the motor cycle had skidded only due to his negligence. Therefore, the appellant-Insurance Company has failed to discharge the burden of proof which was squarely on its shoulder.

As far as the second contention raised by the learned counsel is concerned, the said contention is clearly untenable. For, in the case of Guruanna Vadi and Another (Supra) the learned Division Bench of this Court has clearly held that a claim application under Section 163A of the Act is not tenable if made by a person whose income exceeds Rs. 40,000/- p.a. But, if the person with the higher income were to notionally bring down his income to Rs. 40,000/-, in order to present his claim under Section 163A, the same can be permitted. In the present case, the claimant had clearly stated that the income of the deceased was Rs. 3,250/- so as to bring the case within the four corners of Section 163A of the Act. Hence, the contention raised by the learned counsel for the appellant that even the claim petition would not be maintainable is clearly unacceptable.

For the reasons stated above, this Court does not find any merit in the appeal. It is, hereby, dismissed.

The amount deposited before this Court shall be transferred to the concerned Tribunal forthwith.