The Branch Manager New India … vs Nagaraj Subraya Shetty on 15 September, 2010

hereitmwho \aras”t}fIe hiaimant IDBAQFE the ribunal Tiled

‘”eroVs’s.oi:$j’ectis.on seeking enhancement of compensation.

claimant initially filed claim petition

“..under”Seetion 166 of MV Act, which was later converted

“:I’ A1fIvto_ }; peti.ti<m under Section 163~A MV Act seeking

_co?rnpensation fox." the personal injuries sustained by

if-'»?L=

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QR

MFA NC).4847/2003
C/W MFA CROB 19/2004
2 4 :

him in the motor vehicie accident that OCCL1f1’C:’d on
13.11.1999. According to the clairnarit, on the 111 fated
day, he and the ow.=:1er of the Hero Hortda
bearing registration No.E§A–30/$146 were
towards Karwar and when they;

owner of the Motorcycle, who Vtias
Motorcycle requested the 1’ic;1vei.:V1th{§owgehiicle * 9′
further and accordingiiy, theVAic1af1t1ai1_t riveting the
Motorcycle. When thej~=’a_t about 1030
am. on seeing’ .__an iifrom opposite
apprehending that the
truck ihit claimantvrider took the

Motor_cycIei”to”theextrierhe left side to avoid possibie

;_accii.dent.”””‘*Gh account of this, he could not

_co:fii_t”r”o1:V’th’e».’M.ot’orcycIe as a result felt down on the road

ar1’~:1__1sust’a1ir§:ec1 injuries. Immediately, he was shifted to

*.,Govt. “Ho1~s;:>ita1, Kumta from where he was shifted to

Hospitat, t\/ianipal. Therefore, he claimed

H§_55,()O,O0O/– as compensatiori under different heads.

/§

g.

,,

MFA N().484’7/2003
C/W MFA CROB 19/2004
: 5 :

The claim petition came to be filed against. the
insurance company and owner of the l\/lotorcvycle.
Owner of the i\/iotorcycle did not contest the
while the lnsurance Company contested
inter alia contending that the ciaizn
Section l.63–A is not maintainable
took place ciue to the rasiiianci “the ” V
claimant himself, theijefore,VAeheiA”‘car1–not claim
petition under against the
owner of the4_:l\/i.otor:cj?c:ie::: Company.
lnsurer”f’ifittli;eirl provision of Section
l63–A only by persons having

annual income of-.leis_si’than 3″ 40,000/– and since the

inpthelliclairri petition has contended that his

is 3″ 8,000/3, the claim petition is not

niai__1fitainabie’iuncler Section l63wA of MV Act. The

“..Tribunai:{i~r)11 the basis of pleadings of the parties framed

‘ i.”i’U’il_O’slQ’l11giSSLZE3S.

MFA NO.4847/2003
C/W MFA CROB 19/2004
: 6 :

1. Whether the petitioner proves that on

13.} L199′) at about 30.30 am. at Miriam he
being the driver of the Motor Cycle
30/J446 caused the accident
Linavoidaéale reasons stated. in

and sustained injuries?

ll. Whether Respondent
not liable to pa}? any conil;lJer1sa.tli’oii.._Vforjthe
reasons stated inii’t*,floiara iliwritten

Statement?”

iii. Whether tlf_1e’i’ entitle for

cornpensatlonj. Wljiat amount and.

~ ~a,g’;_;;instfimvhloni?

‘Part.§e_silleidi”-evidence. The Tribunal, on

assessment ” ._of’~7ora[§ and doettmenta V evidence,

°ans’were’icE issue No.1 in the affirmative and issue No.2 in

it’the_r-iiegatixfe. aking into the consideration the evidence

on i”IT’€CQ’1’Cl,.Vi’.:”£l;3€ Tribunal quantified the compensation

? 329,333/«~ under different heads as

MFA NCX4847/2003
C/W MFA CROB 19/2004
: 7 :
Towarcis pair} and suffering ? 15,000/~
Towards medical expenses 3′ _l5,000/-
‘i’0wards loss of earning for 3 43,333/–
5.2 weel<:s
Towards loss of earning capacity i' 2,5_6;Q'QQ',5.w
due to permanent disability ~w~~*-»-~'–'-¥~-

Total 2° .

4. The Tribunal directed ,..that the”‘e§,ifv:1le1s
Insurance C()TTlpa1]y are jointly llaiucifl
pay the compensation to sithe * it
insurer of the M0t_0.rcycle_…l:llte._ “d_Vepe.sit’l–lVtheil entire
corflpensation amouiiltll’Va::lll1p.a. from the
date of petiti0n’.’«t:«i”ll__ «w:ll.ll/ltglzgrieved by the
said (.)lll’::fftl’1e:l”ll.ri”aulnal”fastening the liability 03:1
the lnstlran_ce Iaresent appeal is filed.

A. htavel-helard Sri.N.R.Kuppelur, learned

llll”Colinsefiagnpearing’alert the appellant and Sri.J.S.Shetty,

I-l.earne’d_T’e0’L:nse1;:~ appearing for the respondent No.1-

clainj a.n._t~. ‘ _ A

ll’ Sri.E{uppe.lL1r, learned cotmsel appearing for

_ lnstzrartee Ccimpany contended that the claim petition

:2

MFA NO4847/2003
C/W MFA CROB 19/2004
:8:

under Sec.t.ion l63~A of }VI.\/.Act was not rnaintainable
for the reasons that the claimant himself was riding the
Motorcycle at the time of alleged accident, tl”1ez'<%:I"«§f¢l..§.:»_Vi:.e'
stepped into the shoes of owner of the
such he could not claim
Insurance Company. In this Fozehall",
placed reliance on the }udgern~ent of " V
Court in the case of £ir1btvh,erivl§ Versus
United India Insurartc:e_.'Co.._v;itcil}1iIRlV:.2Q09 so 3055
and the jLtdg§m:§§11.t this Court in
the casveof Co. Ltd. Versus G.

Sharacfa Kar L.J. 121. He also

contended that’, sVirf:ce’–.th’e”‘ annual income of the claimant

‘lv”«aS trlile”‘p’etition was more than ‘3 40,000/M,

the under Section l63«A of l\/l.V.Act was

not ai n.i”.ain_.able.

it n Per contra, Si’i.J.S.Shett_V, learned counsel

apréeziring for respondent. No.1 by placing reliance on

l

MFA NO.4847/2003
C/W MFA CROB E9/2004
:9:

the judgernent of Hon’%3le Supreme Court in the case of
Deepal Girish Bhai Sam’ & Others Vs. Uftited
Insurance Company Limited, Baroda reported’
2004 so 2107, contended that, even if
was due to negligence of the appe:li:an.t;ciai.rn_anto
he can still maintain a petition
M.V.ACt, therefore, petition..:vp:lj~nder.l’ is ‘V V
perfectly maintainable: slulbrnnstslon that
the above decision of by a Larger

Bench has no,t~be’e_n c§:;onsid.ered”~in.Vthetiater decision of

the SL:pr’eme”i:’Cofitrt ‘in_’-Ningarn’naa’s ease referred to
supra, Vthezieforel’t’he”‘ivaW—.,as~ laid down by the Supreme

Court _in ompal.Von?i~;h”~~–ah.ai’s case should be applied.

.159 thle””‘i’ea1’ned counsel, the judgement of

p_D’ivi_sion’v.l3e.ri’eh”in G.Sharada’s case referred to supra, is

to the present case in the light of the

lll”‘~.«.4l’tjudgen1ent of Supreme Court in Deepal Girishbhafs

Therefore. he sought for dismissal of the appeal

filed by the Ensttrzmce Company. He further contended

/4

MFA NQ4847/2003
C/W MFA CROB 19/2004
: 10 :
that the Tribtmal had committed an error in adopting

multiplier of l6 as the appropriate multiplier is 17.

8. We have bestowed our .a’1i$’ieus
considerations to the submissions made
counsel. in the light of the s1;bmi4ssic’)hlsvVl'”iafiadie,.l_l_’the_ it
questions that arise for considereitiori’_’_’iiri’iitl’1e~gippyeal :7.:.

i) Whether the clair–fi”‘i-petitio’r1.lu.1T1:§ler’2b Selction

163-A of M Actgwés a§i’n;a1nab1’e?’r”

ii) Whether the-1 AV el’Vair:éa1it:iV” entitled for

an e7elr1;e’fi’t.ilOf corripen satiori?

9. l’ ‘l”l1.ere.. Vis.A”rid»._»dispute that, at the time of

alleged acciden_tl,”thel’eletimant himself was riding the

‘L__Even according to the Case as pleaded iri

ztlflfi’:-7″‘Cl’Ve1l”:T{:l””p6¥i§T.i:I5I1, at the place of accident on seeing a

truck from opposite direction at a high speed,

_.ia.ppt:jeh.en¢di11g that the truck may hit the MotorCycl.e, the

Claiiilraiit: took the f\/I’0treyele to the extreme left side of

MFA NO.4847/2003
C/W MFA CROB 19/2004
: 12 :

10. ln Ningammafis case referred to supra,
}~lon’ble Supreme Court while dealing with almost
identical case and the claim having been made'”ti’n.id’er

Section l63–/1\has.’neld thus in para, 18 85 i

“IS. in the case of Oi’iein’t*a.l’_
Company Ltd. v. Rajni D;’e.vi1’_A_ariid
(2008) 5 SCC 736, wherein one’.oft1s,
I-lon’ble Justice 8.13. a
been categorically held etthiatgminl case’ “Where
third party is of the
insurance compatzjy It

was also the said o’teVci’s’i’on~’that where,

hoiweveif’ivieoijrij:3Ver1sAat.ion_ is claimed for the
death of theinxzzne-rVii”or..*’another passenger of
the ve’niclea_ the’..con~’tract of insurance being

ilb5.:eAthe’vconti*act qua contract, the

” iiiclaini ot’at’ne claimant against the insurance

depend upon the terms
is V it was held in the said decision that

Secitionli l63~»A of the l\/IVA cannot be said to

V is .at_h.a\}e any application in respect of an accident

“–..\;vh<«:1:'ein. the owner of the motor vehicle

himself is izivolve.c.l. The decision further held

r=_
' ;

MFA NO.-4847/2003
C/W MFA CR()B19/2O04
: 23:

that the question is no longer res integra. The
11’abé.lit._\’ under section ]63–A of the MVA is on

the owner of the vehicle. So a person cannot.—-_
be both a ciaimant as also a recipient
respect to claim. Therefore, the heirs
deceased eouid not have maintained

in terms of Section 163-A of:’thie”‘1’u’!\_/Ft. .I«nfloiur:
considered opinion, the ratid-‘of7’.the
decision is ciearly app1ic’ab.1_e to the factsv:iofjt}1eV__
present case. In theiiiVi”pres_er1tiii ‘case: the
deceased was notthe o’W’nie’1Vit}i.e rnotiorbike

in question. He borrovJed.ii’the Iisaivdtsireotorbike
from its realowne-i”;'”The ieannot be

heid to” of the

moftor_hi}:<ie'a]t.hough_ ihewas authorized to drive
the 'said Vve11.iVcic-ifbxfi-.t_s"'oWner and therefore, he

wouid is'te}:i) i.nt–o t.he"~'shoes of the owner of the

~ r351.OT3o'i'bike. A' …..

have already extracted Section

MVA hereinbefore. A bare

“‘;oer:gisa;.1«””of the said provision wouid make it

ezscptieitly Clear that persons like the deceased

_ in the present case would step into the shoes

of the owner of the vehicle in a case wherein

MFA NO4847/2003
C/W MFA CROB 19/2004
: I4 :

the victim died or where he was permanently

disabled due to an accident arising out of the

aforesaid motor vehicle in that event thefy”

1ia.b%1ity to make payment of the coIr1pensatj_§5V;i:gV”-:””–

is on the insurance company or the o\Nn–ei;’, is

the case may be as p1’oV%dedm§.1nder”Sejetion: ‘

}E>3~A. But if it is proved that theporiixferi
owner of the motor vehicle, tixat casveithe it 3

owner eouid not himsieI.:f’~V.1;e reci.piient’~–.::o’f”‘
Compensation as the IiaEj_i]_iityV’to.’pay.ithesarne

is on him. This .iis”a_b_soIute1y dear

on a reading of MVA.

Aeeording.1y,::”the of the

deeeased_have _ste.pp._ed]iritOiHthe shoes of

the owi.1eVr’i’of m.otor vehicle could not have
ciainied eorrlopiené:-aVtion’«*;inder Section 163A of

the MVP…”

in the”‘(:’ase on hand also the claimant

rider of the Motoreycie at the time of

aeeidentV.e1i1iid_. on the request of the owner of the Vehicle

rodefihe same. There was no other tort feasor

.”invo1f{%ed in the accident. Therefore, in terms of the law

_]aid CiO\»’H] in Ningatninafis ease, the claimant stepped

MFA NO.4847/2003
C./W MFA CROB 19/2004

:35}:

into the shoes of the owrzer of the Motorcycle as such he
could not make a claim against the insurer the
Motorcycle under Sectirm l.63–A lVl.\/.Act. The
down by Supreme Court in Ningamma’s
supra that, since the primary res.po_nAsihli.liltvjf.iTtolsati:sfy=-_ it
the award tmder Section l63~A
the motorcycle and the claiIr;lg;:ifit.V_hai/’Air:gQ1;__ “the
shoes of the owner could at under

Section l.63–A of to the case

on hand.

l2:__V A”7Di\4’isi,ori«,:”Ben_cl’1 of this Court in G.

Sharadal’s_easelrefe’rr’edl”‘to”stipra has also held that, the

_.uim’«~~:.._Vcseetioii l63~A of “‘E.’v’.Act is not

iI:.ai.iitaii1ah_l case the victim himself was the rider of

ithe’-i’.jI\/lot$o.r’i:ycli:-and if no other vehicle was involved in

the “acc:i–.dei’;tC in this decision, the Sivisioh Bench has

,:c1.isti_hgtfisliecl the judgement of Supreme Court in

Eleepal Girishhhai Soni’s case, referred to supra by

MFA NO.4847/2003
C/W MFA CROB 19/2004
.’ 1(1) :

observing that the ratio of said decision. is applicaioie to

a case where the injured / claimant or the
well as any other tort feasors may ~
contributed to the accident. a1’lCi_i.D.,_S’UCiT’l’
injured / ciaimant or the deCease:d«to–.r_f
compensation from the A”‘:._R’e’1;e\fant ” V
observations of .Divisio__h E3eriAc171i:io1,zi’r~r:1’.at.ipar.asfi2 82; 23

are under:

“22f d.e.oision is the
decisigoriiiiiof Court in the

82; Others Vs.
Uinitecl I’iI§s:;i’r.a4i’iebe”iw¢’o*rr1’par1y Limited, Baroda
re1:jo.rted i1a.iA1iR so 207 which is a
AedecisiioiaV_:irentier’edii”‘1oy a larger Bench on a
‘i’:”e;fe:re.?oce ioi§~=’a—B’e1i_c}1 of two Judges doubting
_VVth.e’«.e’ori”‘eetness of the earlier decision in
VCi):’i4e’I_1.iaiii.::”Iiisurance Company Limited Vs.
Ha:-.~sif’agb;qa1 Kodaie reported in 2001(1) soc
in the said decision it has been held

AA ‘i”w,t’hat Section 1.63% of the Act covers cases
‘ii-‘}iere even NEIGLAC}-EJNCE is on the part of

the victim. It is by vva\,-‘ of an exception to

~”»./-. T1’.-….

;ti”:c_ iiui:

MFA £\I().-@847/2003
c/w MFA cnoe 19/2004

Section H36 and the concept of social justice

has been duly taken care of. The ratio
this éecision. in our VlC’W applies to a
where the injtireci/claimant or the dece__e1se:d.:
as well as any other t()F§””‘f€.a’SO’£”!Wlfllfi'”iiQT’tiV
feasors may have jointly CiC1fltF:i’b’.t”£CiCi~._itO
accident and in event’

in} ured / claimant or the””d:e’ceased’* .l_::()iI’E feziisioriii

and can claiin_.Com,p’ens:ati’on from-A

wrongful person.

23c i of the
l:)ivisi.c>.1qi–..el:’§3c~gi1:f:1i’::C1._’cf1 cou:i’tiiin:iAippaji’s case
is appl..ic3ih’l’e to ifighere there is no
that the
iiijui*’eti /” hdeceasecl was solely

I-esp’cnslible”inicia’o.s’i.ng the accident. Though

11

-e.le”f-3’i::p’:*e:.’x’ae court has opined that

€Se.’ctio’n_ l63§}X””of the Act covers case where

is on the part of the

.’–..ivicitin”f1p*..2ii,id is by wzaiy of exception to Section

16-.E3.of”iit’he Act, the Said enunciation has to

bzC’.’,_.:I}”1E1C.l{? applicable to a case where the

iiifiictim is negligent along with other tort

feasor who has also con.trib’utec§ to the

MFA N(.).4»847/2003
C/W MFA CROB E9/2004
: 18 :

aceidenti. But in at ease Wh€I’€ the injured__.__
claimant or the deceased alone is the
of the accident and there is no other pe~r~so_jh.’__’__”‘V.j’
inxroived as in the instance case, then :’1’f1__jt}:a;f:”:.t:
event Appajfs case beC0me.s~app1ieethi’e”e.si1ciV
the injuzed/claimant. tor
representatives of _4_deceVa.s_ed
entitled to compeiisatiorajjixnder

of the Act on 1io…fau1txb–e.s:i’Ls. ém_<.:1 the'i1'v-cl:-313m
under Section V } is not

maintainable as he} '<_i1'i the 'said"5de'¢ision of

the Division Bench Qf.thi's c'oi:;;trtf_7

We v"{::I.gVV'I"€€31'1"1E31'1TZ with the

obser\r;1tion_s "oi?the"«Divi,s'i'oV11 Bench in G. Sharada's case.

Therefcireh the Supreme Court in Deepal

Girishb.}1.e1i S«:;i':i'_'7case is not appiicabie to the case on

as ,ho 'o,i_;her vehicle was involved in the accident.

L111 matter, the claim petition fiied under

S€Ct.i'()I? of 1\/!.V./–\ct is not maintainable.

.s,';i'he1jef()v:9e, the Judgement and award is liable to be set-

. asidie}

MFA NC).48-4'7/2003

C/W MFA CROB 39/2004
: IQ :

13. The alternative argument of Sri.J.S.Shetty is
that, if the petition under Section i63wA is not
maintainabie in the facts and circumstances of the»-case

C I
5g i1}.–i{.'”‘-».5ré(.*–;\ i V * _ ~ 2
for considerationQvhether petition under Section” ‘ _

maintainai3ie, the matter is I’€qL11’I:’Qdb”‘[O
has been done in Ningamma’s case
substance in this arg’umen¥;iV._”<–Azs aiireafidyg
for the reasons best known
got the petition oriVgin:g11_]y"d–. Section 166

changed to OnC.'Ltnd€1f"'S€CQiiOVT1 observed by

the Apr:i<i"Coti'i';t in::fiNin'ga&rnma_'s"case, in a petition under
Section», 166, .the':V:'eA1:aindanVt*–has to prove the negligence
on the part of the tort feiasor. In the case on hand there

was no otlief tor't..feas'or Tor the accident except claimant

As held"i'h"'Ningamma's case, for all practica.1

pi,irpose_vs;~r th.ev._c1aimant was the owner of the vehicle

1sin'c_e he into the shoes of the owner. Therefore,

the'–.(;1aiivm'e'3.n%; cannot be both recipient and tort feasor.

*._The clairi-1a.nt in a petition under Section 166, is not

2"'?

MFA NO4847/2003
C/W MFA CROB 19/2004
2 20 :

entitled for any compensation for his own negligence. In
the case on hand, the claimant having stepped into’ the
shoes of the owner, cannot maintain a claim
against the insurer even under Section .
we see no ground to remand the matter tfsiitheiliif
Hence, the argument is rejected.

14. As the petition ‘~tts’elf:%not_ m_a1n.ta.inable,

question whether the ctlia”iirr:ali;tVi”-sis enfitled for
enhancement does not-1Vs1§1’rviive_.~._fortconsideration.

Therefore, the ‘anneal ::__filed–.:~’by«. thie’–..insf:1rance company

deserve to ‘aivloyvied zvh*i.lve the cross objections filed by
the clairnant is iliaéolertoubediismissed.

4;’l’:>.r_ It “iS_i”siubroitted by the learned counsel

app_earii*tg _for__ the insurance company that, after the

i”k.1Cl”K–“.¥€2.’If1V’&”:fi’i[~.V,_Ei’I;1′(1l’i” award came to be assecl by the

.Trib”{mav~}.i, ‘the entire compensation amount was

,depQsite”d 1337 the insurance company before the Tribunal

and the same has been withdrawn by the clairnant in

:17’
“.;gg,…….. .

“*1a.:ré;’a&y%–.g;ait:..by it. ” “”” ”

MFA NO4847/2003
C/W MFA CROB 19/2004
: 21 :

terms of the :;1ward. Therefore, he submitted that,
iiberty may be reserved to the appeilarlbinsurance
company to take appropriate szeps to recover
amoum.

Acc’.0rding1y, the appeai fife;:1 by
company is allowed. The jLzdge’merrtA.é§fiSe¢tion 163-A is
dismissed.

Insurance at liberty to Workout its
remeAd3;-‘ as ie fJI3<3:a7'to it tinder law to recover the an.1ou:r1t,

Sflfi
EUDGE

Séfg
JUDGE

V%