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BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., & OTHERS V/S MEENKASHI & OTHERS, decided on Wednesday, January 11, 2017.
[ In the High Court of Karnataka, MFA. No. 1203 of 2011 C/W MFA.CROB. No. 107 of 2012 (MV). ] 11/01/2017
Judge(s) : B. MANOHAR
Advocate(s) : A.N. Krishna Swamy, D.C. Srinivasa, A.N. Krishnaswamy, V. Girish.
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    (Prayer: This MFA is filed u/s 173(1) of MV Act against the Judgment and Award dated:4.10.2010 passed in MVC No.164/2009 on the file of Presiding Officer Fast Track Court-III Mysore awarding a compensation of Rs.50 000/- with interest @ 6% p.a. from the date of petition till realisation.This MFA.Crob in MFA No.1203/2011 is filed u/O-41 Rule 22 of CPC against the Judgment and Award dated:4.10.2010 passed in MVC No.164/2009 on the file of Presiding Officer Fast Track Court-III MACT Mysore partly allowing the claim petition for compensation and seeking enhancement of compensation.1. The Bajaj Allianz General Insurance Company Limited as well as the claimants have filed this appeal and cross-objection challenging the judgment and award dated 04-10-2010 made in MVC No.164/2009 passed by the Motor Accident Claims Tribunal Mysore (hereinafter referred to as “the Tribunal” for short).2. The appellant-insurance company has filed MFA No.1203/2011 being aggrieved by the judgment and award passed by the Tribunal saddling liability on them to pay compensation of Rs.50 000/- whereas the claimants have filed the Cross-objection No.107/2012 seeking enhancement of compensation.3. The facts of the case as follows:The claimants who are the father mother and brother of deceased S Dayanand have filed the claim petition under Section 163A of Motor Vehicles Act contending that on 05-02-2009 at about 1.30 a.m. the deceased S Dayanand along with his 4 friends while returning from Chamundi Hills in a Scorpio Car bearing Registration No.KA-09/N-5728 which was driven by the deceased he lost control over the said car and dashed against the roadside tree. Due to the impact Dayanand sustained grievous injury to his head and all parts of the body. The other inmates of the car also sustained simple injuries. Immediately after the accident the other inmates of the car shifted Dayanand to Gopalagowda Shanthaveri Memorial hospital. Thereafter he was shifted to the K.R.Hospital Mysore. However he died during the course of treatment. In the claim petition it was contended that the deceased was a brilliant student studying engineering course at Bengaluru. During the holidays he used to visit Mysore and on such visit he went to Chamundi Hills along with his friends. While they were returning from Chamundi Hills the car dashed against roadside tree as a result of which he died. The first respondent is the owner of the car which was insured with the 2nd respondent. The vehicle is covered by the insurance policy. Hence both the respondents are liable to compensate the claimants jointly and severally and sought for compensation of Rs.30 50 000/-.4. In response to the notice issued by the Tribunal respondents entered appearance and filed written statement. The 1st respondent in the written statement clearly admitted almost all the averments made by the claimants. He has also admitted that he is the owner of the said vehicle as on the date of accident and the insurance policy is in force. Hence the insurance company is liable to compensate the claimant. The 2nd respondent in the written statement denying the entire averments made in the claim petition. However admitted that the insurance policy is in force as on the date of accident and contended that the policy is subject to fulfillment of certain conditions. Further the driver of the said car was not holding valid and effective driving license as on the date of accident. Due to the negligence on the part of the deceased who was driving the car the accident had occurred. He is a tort feasor and had violated the terms and conditions of the policy. Hence the insurance company is not liable to compensate the claimants.5. On the basis of pleadings of the parties the Tribunal framed the following issues:1. Whether the petitioners prove that Dayananda.S S/o. Shivanna.S.V. died in a Road Traffic Accident that occurred on 5.02.2009 at about 1.30 p.m. near Car Head quarters Road towards Planet-X Mysore city when he was proceeding in a car bearing Reg.No.KA.09/N/5728?2. Whether the petitioners prove that they are entitled for compensation? If so to what amount and from whom?3. To what order?Subsequently Issue No.1 was recasted which reads as under:1. Whether the petitioners prove that Dayananda.S. S/o. Shivanna.S.V. died in a Road Traffic Accident that occurred on 5.2.2009 at about 1.30 p.m. near Car Head quarters Road towards Planet – X Mysore city when he was proceeding in a car bearing Reg.No.KA09/N/5728?6. In order to prove the case of claimants the 1st claimant got examined herself as PW-1 and got marked documents as Ex.P-1 to P-11. On behalf of the respondents one of the officials of the Insurance Company was examined as RW-1 and got marked the documents as Exs.R-1 and R-2.7. The Tribunal after appreciating the oral and documentary evidence let in by the parties and taking into consideration the IMV report Spot Sketch Spot Mahazar copy of the complaint and charge sheet held that due to the rash and negligent driving of the car the deceased sustained injuries and died during the course of treatment. The deceased is not the owner of the car. He has taken the car from the 1st respondent. Due to his negligence at about 1.30 a.m. he dashed the car against the roadside tree and sustained grievous injuries and subsequently died. The deceased is not a 3rd party. Hence the insurance company is not liable to compensate the claimants. The tribunal also relied upon the judgment of the Hon’ble Supreme Court reported in 2009 (3) T.A.C. 13 in the case of NINGAMMA AND ANOTHER V/S. UNITED INDIA INSURANCE COMPANY LIMITED and held that the claimant is not entitled for the compensation under Section 163A of the Motor Vehicles Act (hereinafter referred to as “the Act” for short). However the Tribunal has awarded the compensation of Rs.50 000/- invoking Section 140 of the Act fastening the liability on the Insurance Company to compensate the claimants holding that as on the date of the accident insurance policy was in force. Hence the Insurance Company is liable to compensate the claimants under Section 140 of the Act. Being aggrieved by the judgment and award passed by the Tribunal the Insurance Company preferred MFA No.1203/2011. Whereas the claimants being not satisfied with the quantum of the compensation awarded by the Tribunal filed the Cross Objection No.107/2012 contending that the compensation awarded by the Tribunal is lower side. As on the date of accident the insurance policy covers the risk of the car. Hence the claimants are entitled for the compensation of Rs.30 50 000/- and sought for enhancement of compensation.8. Sri. A N Krishna Swamy learned advocate for the appellant-insurance company contended that the judgment and award passed by the Tribunal is contrary to law. Due to the negligence on the part of deceased the accident had occurred. The vehicle is a lent vehicle and he is not the paid driver. He is not a third party. Hence the claimants are not entitled for the compensation under Section 163A of the Motor Vehicle Act. The Tribunal having held that the claimants are not entitled for compensation under Section 163A of the Act had committed a mistake in awarding compensation under Section 140 of the Act. There is a clear bar under Section 163B of the Act. Section 163B contemplates that where a person is entitled to claim compensation under Section 140 and 163A he shall file the claim petition under either of the said sections and not under both. Section 163A of the Act is incorporated in order to compensate the person belong to a lower group of income without proving the negligence whereas in all other circumstances the claimant has to file the claim petition either under Section 140 or 166 of the Act. The judgment relied upon by the Tribunal reported in 2010(3) A.T.C.13 is not applicable to the facts of this case and sought for setting aside the same by allowing the appeal.9. I have carefully considered the arguments addressed by the learned counsel for both the parties. Perused the judgment and award passed by the Tribunal and oral and documentary evidence.10. The documents available on record clearly disclose that on 05-02-2009 at about 1.30 a.m. while deceased Dayanand and his friends were returning from the Chamundi Hills in the Scorpio Car which was driven by the deceased Dayanand due to rash and negligence dashed against the roadside tree. Due to that the deceased sustained grievous injuries all over the body and during the course of treatment he died in KR Hospital. The claim petition has been filed under Section 163A of the Act seeking for compensation. Under the said provision the claimants need not prove the negligence of the deceased. The records further disclose that the 1st respondent is the owner of the said car. In his evidence he has clearly stated that as on the date of the accident the deceased had taken his car to go to Chamundi Hills and while returning the car dashed against the roadside tree and deceased died. The deceased was not a paid driver. He stepped into the shoes of the owner. The insurance policy covers the risk of third party. In the instant case deceased is not a third party. The vehicle in question is a private vehicle. Hence the claimant cannot claim the compensation under Section 163A of the Act. The Tribunal after appreciating the matter in detail and relying upon the judgment of the Hon’ble Supreme Court in Ningamma’s case and also subsequent judgment of the Hon’ble Supreme Court reported in (2012) 2 SCC 356 (NATIONAL INSURANCE COMPANY LIMITED V/S. SINITHA) held that the claimants are not entitled for compensation under Section 163A of the Act. The Tribunal having held that the claimants are not entitled to compensation under Section 163A of the Act had proceeded to pass order granting compensation of Rs.50 000/- invoking Section 140 of the Act which is contrary to law. When once the Tribunal comes to a conclusion that the claimants are not entitled for compensation under Section 163A of the Act it cannot pass any order under Section 140 of the Act granting compensation and direct the Insurance Company to compensate the claimant. Under Section 140 of the Act on fulfillment of certain ingredients the compensation can be awarded on the principles of no fault. Hence the judgment and award passed by the Tribunal is contrary to law and the same is liable to be set aside. Accordingly I proceed to pass the following:-ORDERMFA No.1203/2011 filed by the insurance company is allowed. The judgment and award dated 04-10-2010 made in MVC No. 164/2009 passed by the MACT Mysore is set aside and the claim petition filed by the claimants is dismissed. In view of allowing the appeal filed by the insurance company the Cross-Objection No.107/2012 filed by the claimants is dismissed.The amount in deposit is directed to be refunded to the appellant-insurance company.