Mastanappa vs R. Shantabai

A.V. Chandrashekara, J.—Present appeal is filed by the claimants of a case bearing MVC No. 1570/2008, which was pending on the file of the Prl. Civil Judge (Sr. Dn.) at Gulbarga. Appellants are the parents of deceased Amrut, who died in a road accident that occurred on 14.03.2004 at about 7.30 p.m. near RTO check post, Humnabad on high way No. 9. When deceased Amrut and one Joseph - the husband of the 1st respondent were proceeding on a motorcycle bearing No. KA.39.E.9747, the husband of respondent No. 1 is stated to have driven the same in a rash and negligent manner and the vehicle met with an accident. As a result of the same, Amrut sustained severe injuries and succumbed to the same.

According to the claimants, the accident took place solely due to the negligence of Mr. Joseph - the husband of the 1st respondent. The 1st respondent is stated to be the registered owner of the said motorcycle and it had been validly insured by the 2nd respondent - insurance company. With these pleadings, they had requested the Tribunal to award a compensation of Rs. 7,50,000/-.

The said petition was contested by both the respondents.

The 1st respondent has admitted about the accident and the case being registered in Crime No. 76/2004 and later on filing a ''C'' report. According to the 1st respondent, the deceased had himself driven the vehicle and the husband of the 1st respondent was sitting as a pillion rider and the accident took place solely due to the negligence of deceased Amrut.

The 2nd respondent chose to file a detailed written statement, denying all the material averments and had called upon the claimants to prove the occurrence of the accident and the negligence contributed by the husband of the 1st respondent.

According to the 2nd respondent, claimants had filed a similar petition before the Commissioner for Workmen''s Compensation at Gulbarga with a different story and their petition came to be dismissed. With these pleadings, they had requested the Tribunal to dismiss the petition.

The following issues came to be framed on 20.07.2009:

"1. Whether the petitioners prove that on 14.3.2004 at about 7.30 p.m. near RTO check post Humanbad on high way No. 9, when the deceased and the husband of respondent were proceeding on the way to Chitguppa on motorcycle bearing No. KA-39/E/9747 Bajaj Boxer Motorcycle belongs to respondent No. 1 and husband of R-1 who ride the same in a rash and negligent manner so as to endanger human life and met with accident and thereby caused accident?

Whether the petitioners further prove that the alleged accident occurred due to the negligence riding of motor cycle i.e. husband of R-1 and met with accident, as a result deceased Amruth sustained grievous injuries and succumbed to death as alleged?

Whether the petitioners are entitled for compensation? If so, to what amount and from whom?

What award or decree?"

Claimant No. 1 is examined as P.W. 1 and has got marked 3 Exhibits. Shantabai, the owner of the scooter is examined as R.W.1 and Mahendra Tuppad, the Asst. Divisional Manager of respondent No. 2 is examined as R.W.2. In all 9 Exhibits have been got marked. Ultimately, issue No. 1 is answered partly in the affirmative and issue No. 2 in the negative. Issue No. 3 is held partly in the affirmative. Ultimately, the Tribunal has awarded a sum of Rs. 50,000/- only as compensation by holding that it was a hit and run case. Being aggrieved by the compensation of Rs. 50,000/- awarded by the Tribunal, the claimants are before this Court.

Heard the learned counsel appearing for the parties and perused the records.

As could be seen from the records, Ex. R1 is the certified copy of the final order passed by the Commissioner for Workmen''s Compensation, Gulbarga under the provisions of Workmen''s Compensation Act, 1923 on a petition filed by the same claimants namely, Mastanappa and his wife Laxmibai.

Case was registered as CR. No. 116/2004 and claim petition was dismissed on 30.03.2007. The Workmen''s Compensation Commissioner has specifically come to the conclusion that the deceased himself had borrowed the vehicle in question from the 1st respondent and the husband of the 1st respondent was not driving he said vehicle. The fact that the deceased was a photographer is falsified by the evidence of Mastanappa, which is forthcoming from Ex. R2, the certified copy of his deposition recorded by the Workmen''s Compensation Commissioner.

As rightly pointed out by the learned counsel for respondent No. 2 - the insurer, the claimants had approached the Motor Accidents Claims Tribunal with a different story and the same is in clear contradiction of the one found in Ex. R1 - the final order passed by the Commissioner for Workmen''s Compensation.

In the case of New India Assurance Co. Ltd. Vs. Rajendra Prasad Bhatt and others, , it is held that proper forum to claim compensation in respect of hit and run case is not the MACT in view of Rule 20 of the Solatium Scheme, 1989, a scheme formulated under the Motor Vehicles Act.

In the case of Ningamma and Another Vs. United India Insurance Co. Ltd., , the Hon''ble Apex Court has specifically held that legal representatives of a person driving a vehicle after borrowing it from the owner meets with accident without involving any other vehicle would not be entitled to claim compensation, since the borrower of such a vehicle steps into the shoes of the owner.

Following the decision of the Apex Court in the case of Oriental Insurance Co. Ltd. Vs. Rajni Devi and Others, , it is specifically reiterated in Ningamma''s case cited Supra that the owner cannot himself be a recipient of compensation as liability to pay the same is on him. Provisions of Section 163-A of the Motor Vehicles Act, 1988 have been specifically discussed while holding that borrower of a vehicle would step into the shoes of the owner.

The police, after conducting investigation have filed a ''C'' report, since they have not been able to find out the vehicle, which is stated to have dashed against this motorcycle.

In the light of the ''C'' report and in the light of the decision of the Madhya Pradesh High Court in the New India Assurance Companies'' case cited Supra, claimants are not entitled for any compensation. Anyhow, the insurance company has satisfied the award passed on 29.10.2010 by depositing Rs. 50,000/- with interest @ 6% p.a. thereon. In this view of the matter, there is no merit in the appeal and the appeal is liable to be dismissed.

ORDER

Appeal is dismissed. There is not order as to costs.