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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
H.P.Sandesh, J.
United India Insurance Co., Ltd. - Appellant
Vs.
Smt. Susila W/o. Shamrao Patil - Respondent
M.F.A. No.22468 of 2011 (MV)
Decided On : 30-09-2022
Motor Vehicles Act - Section 163-A and 166 - Accident - Liability and Quantum of Compensation - Whether in a case of this situation, Insurance Company is liable to pay compensation - Whether deceased would become third party as contended by learned counsel for claimants - Whether claimants are entitled for compensation in a case of fall of big branch of eucalyptus tree on head of deceased while he was proceeding on a motorcycle - Whether deceased stepped into shoes of insured as contended by learned counsel for Insurance Company. [Para 27]
Finding of the Court: Having taken note of these contentions and on perusal of material available on record, admittedly vehicle which was involved in accident is standing in name of daughter of deceased and in cross-examination it is admitted that Hero Honda motorcycle belongs to sister of P.W.1 i and hence, it is clear that father was driving vehicle belonging to daughter and eucalyptus tree fallen down on head of father and he succumbed to injuries - In view of Ramkhiladi’s case, if policy covers risk of insured, company is liable to pay compensation on head of compulsory PA to owner-cum-driver and in terms of Ex.R.1 for compulsory PA to owner-cum-driver an amount of Rs.50/-is collected and same is not disputed and Tribunal failed to take note of contents of document at Ex.R.1 and instead of fastened liability on Insurance Company to pay entire compensation - In view of payment of Rs.50/-under coverage of compulsory PA to owner-cum-driver and also in view of judgement in Ramkhiladi, wherein Apex Court held that when additional premium had been paid towards personal accident cover to owner-cum-driver, an amount of Rs.1,00,000/-has to be paid to heirs of borrower of vehicle, since he stepped into shoes of owner of vehicle - Judgement of Ramkhiladi is very clear regarding said aspect in para Nos.5.8 and 5.9 - Hence, claimants are entitled for an amount of Rs.1,00,000/-since there is explicit coverage of insurance under the head of personal accident cover to insured-cum-driver - Hence, Insurance Company is liable to pay compensation of Rs.1,00,000/-with interest - In Ramkhiladi’s case, interest at the rate of 7.5% p.a. is awarded - Hence, it is appropriate to direct Insurance Company to pay interest at 7.5% p.a. from date of claim petition till realization.
Result: Appeal allowed in part.
JUDGMENT :
This appeal is filed challenging the judgement and award passed in MVC No.3020/2007 dated 05.02.2011 on the file of II Additional District and Sessions Judge and Additional MACT, Belagavi, questioning the liability and quantum of compensation.
2. Factual matrix of the case of the claimants before the Tribunal is that the claimants invoking Section 163-A of Motor Vehicles Act claimed compensation of Rs.5,00,000/-in respect of death of Shamrao Patil in a road traffic accident, who died on 02.07.2006 at 6.00 p.m. when he was proceeding on Hero Honda motorcycle bearing Reg.No.MH-09/AV-706 and when he came near Somali land on Salpewadi-Gargoti road within the limits of Salpewadi village, at that time a big branch of eucalyptus tree suddenly fell on the head of the deceased, as a result of which he had sustained grievous injuries. Immediately he was shifted to Government hospital, Gargoti for treatment and he succumbed to injuries and they have spent an amount of Rs.25,000/-towards medical treatment and funeral expenses and the deceased was hale and healthy and was aged about 44 years on the date of accident. It is further contended that he was earning Rs.3,300/-by doing mason work and was maintaining his family and due to untimely death, the claimants have put to great mental agony, shock and lost their love and affection and family also put to financial difficulties.
3. It is further contended that the accident is on account of use of motorcycle which is owned by respondent No.1 and insured with respondent No.2 and hence, claimed compensation.
4. In pursuance of the clam petition, notice was ordered and respondent No.1 appeared and filed objections denying the allegations and other averments made in the claim petition, however it is admitted that the deceased being relative of respondent No.1 has requested the vehicle of respondent No.1 to visit the relatives house nearby village and respondent No.1 on verifying the driving licence has given his vehicle for his convenient travelling but unfortunately by act of god the accident has taken place and he died and there is no fault on the part of respondent No.1 and if any compensation payable that should be indemnified by respondent No.2.
5. Respondent No.2-insured denied the age, occupation and income of the deceased and further denied the accident. It is also denied that the vehicle was insured with respondent No.2. It is contended that compensation claimed is imaginary, excessive, speculative and disproportionate and also denied spending of Rs.25,000/-for medical and funeral expenses. It is further contended that the accident is because of fall of branch of eucalyptus tree while the deceased was proceeding in a motorcycle and hence the company is not liable to pay the compensation.
6. Based on the pleadings of the parties, the Tribunal framed four issues and answered issues as affirmative and directed the Insurance Company to pay the compensation. The claimant No.3 is examined as P.W.1 and one witness as P.W.2 and in all produced documents as per Exs.P.1 to P.7 and respondents did not choose to examine any witnesses, but only produced copy of policy which is marked as Ex.R.1.
7. Being aggrieved by the judgement and award of the Tribunal, the appellant-Insurance Company has preferred the present appeal by raising some of the grounds that the judgement and award is against the material on record. It is contended that the claim petition is filed under Section 163-A of Motor Vehicles Act and for the death of rider of the motorcycle, there cannot be any compensation and Tribunal has committed an error. It is also contended that accident has taken place because of fall of big branch of eucalyptus tree on the head of the deceased and the same cannot be treated as a motorcycle accident and hence, the Tribunal ought to have dismissed the claim petition but erroneously allowed the same.
8. The other count of argument of the appellant’s counsel is that the petition is filed under Section 16
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