The deceased, by causing the accident due to his negligence while riding the motorcycle, stepped into the shoes of the owner of the vehicle, making the claim petition against the insurance company not maintainable.

JUDGMENT :

This appeal is filed against the judgment and award dated 05.02.2019 passed in MVC No.8/2017 by the Senior Civil Judge and MACT, Gangavathi.

2. For the sake of convenience, parties are referred to as per their ranking before the Tribunal.

3. It was the case of the appellants/petitioners that on 13.04.2016 at 8.30 p.m., the deceased Shambulinga was riding the motorcycle bearing KA-37/Y-0712 and going on Sindhanur-Gangavathi main road; At Pragatinagar, pedestrian by name Hulugappa came across the road. Deceased tried to avoid the accident and in that process, he lost control of the motorcycle and fell down. He sustained grievous injuries and he was shifted to SDM Hospital, Dharwad; While undergoing treatment, he succumbed to the injuries on 01.05.2016.

4. It was further contended that the deceased was aged about 25 years, working as driver and earning Rs.3,333/-p.m. Claimants were depending upon the earnings of the deceased, who are his wife, minor son, brother and sister respectively of the deceased Shambhulingappa. With these reasons, petitioners claimed compensation of Rs.22,88,200/-.

This petition was filed under Section 163A of M.V.Act.

5. Respondent No.2 has contended before the Tribunal that rider of the motorcycle i.e., deceased Shambhulingappa was not holding valid driving licence. The owner of the vehicle violated the conditions of the policy. The accident was caused due to negligence of the rider of the motorcycle. Therefore, petition is not maintainable and legal heirs of the deceased cannot claim compensation under Section 163A of M.V.Act. The amount of compensation claimed is exorbitant and prayed to dismiss the petition.

6. The Tribunal has framed relevant issues. Petitioners have examined P.Ws.1 and and got marked Exs.P1 to P95.

7. Respondent No.2 examined R.W.1 and got marked Ex.R1. The Tribunal appreciating the pleadings and evidence on record dismissed the petition by the impugned judgment. The same is challenged by the claimants.

8. We have heard the arguments.

9. The following points emerge for our determination:

i) Whether petition is maintainable and claimants are entitled for compensation? >

ii) What order?

10. This petition was filed under Section 163A of the M.V.Act. The main contention of respondent No.2 was that deceased had taken the vehicle from the owner and was riding the same in a rash and negligent manner; due to his negligence, the accident had taken place and he died in the accident. The Tribunal relied on the judgment of the Hon’ble Supreme Court in Civil Appeal No.3538/2009 in the case of Ningamma and Another v. United India Insurance Company Ltd. held that borrower of the vehicle steps into the shoes of the owner of the vehicle and therefore, borrower of the vehicle or his legal heirs are not entitled for compensation. The Tribunal has also relied on the judgment of the Hon’ble Supreme Court in the case of Oriental Insurance Company Ltd. Vs. Josef reported in 2012(2) KLT 132 and held that petition was not maintainable.

11. Learned counsel for the insurance company relied on the judgment of the Hon’ble Supreme Court in the case of Ramkhiladi and Another vs. United India Insurance Co.Ltd., and Another reported in 2020 ACJ 627 and submitted that claim petition is not maintainable.

12. Learned counsel for the claimants relied on the judgment of the Hon’ble Supreme Court in Civil Appeal No.2527/2020 dated 08.06.2020 in the case of Chandrakanta Tiwari vs. New India Assurance Company Ltd. & Another and contended that in view of law laid down in the above said judgment, claimants are entitled for compensation.

13. We have considered contentions of both side.

14. The submission of the learned counsel for the appellant is not tenable. The facts in the case of Chandrakanta Tiwari (supra) are different from the facts of the present case. In the above referred case, the deceased was a pillion rider and the rider of the motorcycle was different person. Therefore, it was held that pillion rider was third party