Broken Tree Branch Kills Bike Rider - Karnataka HC Allows Legal Heirs' Claim Under Section 163A Motor Vehicle Act 1988

UNITED INDIA INSURANCE CO. LTD. VS SMT.SUSILA W/O. SHAMRAO PATIL
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
30TH DAY OF SEPTEMBER 2022

THE BRIEF FACTS

1. 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. 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/AV706 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.

3. 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.

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 drivinglicence 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.

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 bigbranch 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 163-A of Motor Vehicles Act and the Tribunal ought to have awarded compensation as per the II schedule of Motor Vehicles Act. The compensation awarded under the head of funeral expenses, loss of estate and consortium is on higher side and hence, it requires interference.

9. Counsel also contends that the Tribunal has completely overlooked the material evidence. The counsel during the course of argument also raised a contention that the deceased being the relative of theinsured cannot maintain a petition under Section 163- A of Motor Vehicles Act and the claimants stepped into the shoes of the owner since the deceased has borrowed the vehicle from the original owner and hence, the claimants cannot be recipients and also beneficiaries under the Contract of Indemnity which is in existence between the insured and the insurer.

10. Counsel in support of his argument, relied upon the judgement of the Apex Court reported in 2020 ACJ 627 in the case of Ramkhiladi and Another vs. United India Insurance Company Limited and Another, wherein it is held that when a petition is filed under Section 163-A of Motor Vehicles Act by heirs of owner of vehicle or by heirs of borrower of the vehicle who step into the shoes of the owner for the death of owner or borrower is maintainable and ultimate liability under Section 163- A of Motor Vehicles Act is on the owner of the vehicleand a person cannot be both, a claimant as also a person on whom the liability falls; Insurance Company is liable to pay compensation to third party and not the owner; deceased stepped into the shoes of the owner and he was not a third party.

11. Per contra, counsel for the respondentsclaimants in his argument, vehemently contends that the very argument canvassed by the appellant’s counsel cannot be accepted. The counsel relied upon the judgement of Division Bench of this Court reported in ILR 2003 KAR 4911 in the case of Sulochana and Others vs. Karnataka State Road Transport Corporation, wherein also the petition is filed under Section 163-A of Motor Vehicles Act and facts of the said case is that A Banyan tree grown on the side of the road fell on the running bus resulting the death of three persons including the petitioner. In the case, it is held that proof of fault can it still be made a basisand held that all that need be shown by the claimant in support of the claim is that the injury or death which is made the basis for the claim arose out of the use of a motor vehicle, the provision is not intended to introduce a rule of evidence merely shifting the burden of proof from the claimant to the owner and the driver of the vehicle. If the intention of the parliament behind the introduction of Section 163-A was to simply shift the burden of proof to the owner or the driver of the vehicle, the provisions of Section 163-A would have been differently worded, therefore, this Court has no hesitation in holding that a victim or legal heirs of a victim are entitled to claim compensation in terms of Section 163-A read with Schedule II to the Act without either pleading or proving that the accident in question had resulted from any act of negligence or default on the part of the owner or the driver of the vehicle.

OBSERVATIONS & DECISION OF THE HIGH COURT

12. Having perused materials on record, the father (deceased) stepped into the shoes of the insured since he has borrowed the vehicle from the daughter and was driving the motorcycle at the time of accident which has taken place and he succumbed to injuries. Hence, point No.2 is answered in favour of Insurance Company and point No.3 is answered against the claimants and it cannot be held that the deceased would become third party as contended by counsel for claimants.

13. Having considered the material on record, admittedly the claim petition is filed under Section 163-A of Motor Vehicles Act and negligence is not a criteria while considering the claim petition under Section 163-A. But, when this Court has comes to the conclusion that the deceased stepped into the shoes of the insured who being the daughter of the deceased whether Insurance Company is liable to pay compensation is a question that needs to be decided.

14. Claimants contended that their deceased father be held as third party to the insurance policy. The insurance company contended that it is liable to pay compensation to third party and not the owner. The claimants (respondents) contended that the deceased would become third party.

To address this contention, the bench relied on Supreme Court's judgment in Ramkhiladi & Anr. v. United India Insurance Company Ltd. & Anr., wherein it was heldthat liability under Section 163-A of Motor Vehicles Act is on the owner of the vehicle and a person cannot be both, a claimant as also a person on whom the liability falls.

15. Therefore, the court said it has no hesitation in holding that victim or legal heirs of a victim are entitled to claim compensation in terms of Section 163-A read with Schedule II to the Act without either pleading or proving that the accident in question had resulted from any act of negligence or default on the part of the owner or driver of the vehicle.

16. The bench said, "Hence, claimants are entitled for an amount of Rs.1,00,000/- since there is explicit coverage of the insurance under the head of of personal accident cover to insured-cum-driver. Hence, the Insurance Company is liable to pay compensation of Rs.1,00,000/- with interest.

Accordingly, it modified the order passed by the tribunal and said that the claimants are entitled for a sum of Rs.1,00,000 with interest at 7.5% p.a.from the date of claim petition till realisation as against Rs.3,62,000.

CONCLUSION

In the above decision, the High Court held that the liability under Section 163-A of the Motor Vehicles Act, 1988 is on the owner of the vehicle and a person cannot be both , a claimant and also a person to whom liability falls. A person cannot be owner and the claimant at the same time. A person ,who has borrowed a vehicle from the owner of the vehicle enters in the shoes of the owner and cannot be claim under provisions of Section 163-A of the MVA, 1988. In above case additional premium has been charged by the insurance company and hence court held that additional premium paid by the insured was for personal accident policy and hence heirs /legal representatives of deceased are liable for claim under PA Policy.

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