AND

AWARD

DATED:19.03.2011 PASSED IN MVC NO.9385/2009 ON

THE FILE OF THE VII ADDITIONAL JUDGE, AND MEMBER ,

MACT-3

COURT

OF

SMALL

CAUSES,

BANGALORE,

AWARDING A COMPENSATION OF RS.50,000/- WITH

INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL

DEPOSIT.

THIS M.F.A. COMING ON FOR HEARING THIS DAY,

THE COURT DELIVERED THE FOLLOWING:

J U D G M E N T

This appeal is filed under Section-173(1), of the

Motor Vehicles Act, 1988 (8MV Act9 for brevity), by the

appellant - insurance company, challenging the judgment

and

award

dated

19.03.2011,

passed

in

MVC

No.9385/2009, on the file of Motor Accident Claims

Tribunal, at Bangalore.

3

Brief facts:

That on 23.08.2009 at about 9.30 a.m.,

deceased Chetan Kumar was riding motor cycle bearing

registration No.KA-05-EL-2356 along with pillion rider

Shivraj from J.P.Nagar from Kumbalgod on Nice Road.

While so proceeding on Nice Road, near Mysore Road

Junction, near Kempanna Temple deceased Chetan Kumar

lost control over the motor cycle due to unavoidable

circumstances lost control over the motor cycle and

dashed against the left side of the road medial and thereby

accident occurred. Due to this impact, rider Chetan Kumar

and pillion rider sustained fatal injuries.

Soon after the accident, Chetan Kumar was

shifted to BGS Global Hospital for treatment. During the

course of treatment, on the same day, by 4.15 p.m.,

injured Chetan Kumar succumbed to the injuries sustained

in Road Traffic Accident.

4. Thereafter a claim petition was filed by the

claimants i.e., parents of the deceased under Section-163A

of the M.V. Act, claiming compensation. The Tribunal on

4

appreciating the materials on record, allowed the petition

in part, and awarded a compensation of Rs.50,000/- along

with interest at 6% per annum, from the date of petition

till the date of deposit, on invoking the provisions of

Section-140 of M.V. Act, on the theory of 8no fault liability9.

Therefore, the appellant-insurance company has preferred

the present appeal, challenging the impugned judgment

and award of the Tribunal.

5.

The learned counsel for the appellant 3

insurance company submitted that the claim petition filed

by respondent Nos.1 and 2 3 claimants is not maintainable

either under Section3163A or under Section-166 of the MV

Act, since the deceased himself was negligent. Therefore,

compensation ought to not to have been granted under

Section3140 of the MV Act on 8no fault liability9 theory.

Therefore, it is submitted the Tribunal has rightly rejected

the claim of the claimants under Section 3 163A of the MV

Act, but awarding compensation under Section3140 of the

MV Act is not correct.

5

6.

Further, submitted that the deceased was rash

and negligent and due to his negligence the accident was

caused and at the time of the accident the deceased was

not holding a Driving License. Therefore, the appellant 3

insurance company is not liable to pay the compensation.

Therefore, at the most it can be made pay and recovery as

per Section3149 of the MV Act. Therefore, prays to allow

the appeal.

7.

The respondents are served with notice, but

they remained unrepresented.

8.

Upon considering the submissions made by the

learned counsel for the appellant-insurance company and

on perusal of the records pertaining to the case, it is seen

that the deceased died in the accident while he was riding

motor

cycle

bearing

registration

No.KA-05-EL-2356.

Therefore, respondent Nos.1 and 2 have filed a claim

petition under Section3163A of the MV Act. But the

Tribunal by following the judgment of the Hon9ble Apex

Court in the case of Ningamma And Another vs. United

India Insurance Company Limited, reported in AIR 2009

6

SC 3056, has dismissed the claim under Section 3 163A as

the deceased was himself rash and negligent and.

Therefore, dismissed the claim under Section3163A and

awarded compensation under Section3140 of the MV Act

on the ground of 8no fault theory9 liability under section3

140 of the MV Act. Therefore, the insurance company has

preferred the p