- 1 - NC: 2025:KHC:11230-DB MFA No.2306/2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MRS. JUSTICE K.S.MUDAGAL AND THE HON'BLE MR. JUSTICE K. V. ARAVIND MISCELLANEOUS FIRST APPEAL No.2306/2023(MV-D) BETWEEN: THE NEW INDIA ASSURANCE CO., LTD., NO.2951, CHAMUNDIPURAM, JLB ROAD, MYSORE. REPRESENTED BY MOTOR THIRD PARTY CLAIMS HUB, MAHALAKSHMI CHAMBERS, NO.9, 2ND FLOOR, M. G. ROAD, BANGALORE – 560 001 REPRESENTED BY ITS MANAGER … APPELLANT (BY SRI RAVISHANKAR C.R., ADVOCATE) AND: 1. SMT. JYOTHI AGED ABOUT 27 YEARS, W/O LATE SIDDARAMU 2. KUM. LIKHITHA S AGED ABOUT 08 YEARS D/O LATE SIDDARAMU 3. KUM. NIHARIKA S AGED ABOUT 05 YEARS, D/O LATE SIDDARAMU, THE RESPONDENTS NO.2 & 3 ARE MINORS REPRESENTED BY THEIR NEXT FRIEND GUARDIAN, Digitally signed by ROOPA R U Location: High Court of Karnataka - 2 - NC: 2025:KHC:11230-DB MFA No.2306/2023 MOTHER, SMT. JYOTHI, THE RESPONDENTS NO.1 TO 3 ARE R/AT ALADAHALLI VILLAGE, KIRUGAVALU HOBLI, MALAVALLI TALUK, MANDYA DISTRICT. 4. SRI SIDDEGOWDA, MAJOR, AGED ABOUT 70 YEARS, S/O SRI KULLEGOWDA, R/AT ALADAHALLI VILLAGE, KIRUGAVALU HOBLI, MALAVALLI TALUK, MANDYA DISTRICT. … RESPONDENTS (BY SRI VINAY BHAT, ADVOCATE FOR R1 TO R3; R2 & R3 ARE MINORS REPRESENTED BY R1; R4 SERVED AND UNREPRESENTED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 03.01.2023 PASSED IN MVC NO.665/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, MALAVALLI, AWARDING COMPENSATION OF RS.17,64,936/- WITH INTEREST AT 9 PERCENT P.A. FROM THE DATE OF PETITION TILL ITS ENTIRE REALIZATION. THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL AND HON'BLE MR. JUSTICE K. V. ARAVIND ORAL JUDGMENT (PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL) Challenging the judgment and award in MVC No.665/2019 on the file of the Senior Civil Judge and MACT, Malavalli, the Insurer has preferred this appeal. - 3 - NC: 2025:KHC:11230-DB MFA No.2306/2023 2. Respondent Nos.1 to 3 were claimant Nos.1 to 3, respondent No.4 was respondent No.1 and appellant was respondent No.2 in MVC No.665/2019 before the Tribunal. For the purpose of convenience, parties are referred according to their ranks before the Tribunal. 3. Claimant No.1 is wife, claimant Nos.2 and 3 are minor daughters and respondent No.1 is the father of deceased Siddaramu. On 29.05.2018 at about 7.10 p.m., when Siddaramu was riding Bajaj motorcycle bearing Regn. No.KA- 11-L-0391 on Aladahalli-Hittanahallikoppalu road within the limits of Kirugavalu Police Station, he hit the road side tree and suffered grievous injuries. He succumbed to the injuries when he was being shifted to the hospital. 4. Regarding the incident, on the complaint of one Shivalingaiah.M, ASI of Kirugavalu Police Station, FIR as per Ex.P.1 in Crime No.155/2018 was registered against Siddaramu himself. On investigation, charge sheet Ex.P.6 was filed against him for the offences punishable under Sections 279 and 304A of Indian Penal Code, 1860 and Section 181 of IMV Act. At the time of the accident, respondent Nos.1 and 2 were the - 4 - NC: 2025:KHC:11230-DB MFA No.2306/2023 registered owner and insurer of the motorcycle bearing No.KA- 11-L-0391. 5. Claimants filed MVC No.665/2019 against the respondents under Section 163A of the Motor Vehicles Act, 1988 intending that accident and death arose out of use of motor vehicle, that they were depending on the income of the deceased, due to his death, they have suffered damages and they claim compensation of Rs.25,00,000/-. 6. Respondent Nos.1 and 2 contested the petition denying occurrence of accident in the manner alleged, age, occupation and income of the deceased. Respondent No.1 contended that the deceased had no driving license. Respondent No.1 contended that when he was admitted in the hospital, deceased had used his vehicle without his knowledge and authority. He further contended that liability, if any, is payable by respondent No.2 as the vehicle was insured with respondent No.2. Respondent No.2 contended that the policy did not cover any personal accident risk and respondent No.1 had authorized the deceased to drive the vehicle without driving license thereby there was breach of policy condition, hence, it is not liable to pay the compensation. - 5 - NC: 2025:KHC:11230-DB MFA No.2306/2023 7. In support of the case of claimants, claimant No.1 was examined as PW.1 and Exs.P1 to P.6 were marked. Respondent No.1 got examined as RW.1 and respondent No.2 got examined its Administrative Officer as RW.2. On behalf of respondent No.1, Exs.R1 and R2 the ration card and aadhar card respectively were marked. On behalf of respondent No.2, Exs.R3 and R4 the Authorization letter and copy of Insurance Policy were marked. 8. The Tribunal, on hearing both sides, by the impugned judgment and award held that the accident and the death of Siddaramu arose out of use of Motorcycle bearing No.KA-11-L-0391. Though the petition was under Section 163A of the MV Act, the Tribunal assessed his income at Rs.12,500/- per month, deducted 1/3rd out of the same towards personal expenses of the deceased, applied 16 multiplier and awarded compensation of Rs.15,99,936/- towards loss of dependency. The Tribunal, in all, awarded compensation of Rs.17,64,936/- on different heads as follows; Sl. No. Particulars Amount in Rs. 1. Loss of Dependency 15,99,936/- 2. Funeral Expenses 16,500/- 3. Loss of estate 16,500/- - 6 - NC: 2025:KHC:11230-DB MFA No.2306/2023 4. Loss of spousal consortium to the petitioner No.1 44,000/- 5. Loss of parental consortium to the petitioners No.2 and 3 (Rs.44,000/- each) 88,000/- Total 17,64,936/- 9. The Tribunal further held that the vehicle was covered by the Policy issued by respondent No.2 and the same was in force. The Tribunal though held that the deceased was not holding driving license to ride the motorcycle, relying on the judgment of the Hon'ble Supreme Court in the case of Pappu and others vs. Vinodkumar Lamba and another1, held that respondent No.2/Insurer shall pay the compensation and recover from respondent No.1. The insurer has challenged the said award. Submissions of Sri C.R. Ravishankar, learned counsel for the appellant: 10. Admittedly, deceased was the son of respondent No.1 insured. Claimants' own documents show that deceased was riding the vehicle without driving license and he himself was responsible for the accident and his death. Ex.P4- 1 Civil Appeal No.20962/2017 - 7 - NC: 2025:KHC:11230-DB MFA No.2306/2023 Insurance Policy shows that the personal accident risk was not covered under the policy. As deceased steps into the shoes of respondent No.1/insured, he was not entitled to any compensation. The Tribunal though states that the claim petition is under Section 163A of the MV Act, ultimately passes award under Section 166 of the MV Act which shows that the judgment is perverse. Hence, the impugned judgment and award is liable to set aside. 11. In support of his submissions, he relies on the following judgments; (i) Ningamma and another vs. United India Insurance Company Limited 2 (ii) Oriental Insurance Company Limited vs. Rajni Devi and others3 (iii) Ramkhiladi and another vs. United India Insurance Company and another4 Submissions of Sri Vinay Bhat, learned counsel for respondent Nos.1 to 3: 12. The evidence on record shows that the deceased and respondent No.1 are divided and they had independent establishments. The evidence on record shows that as on the 2 (2009) 13 SCC 710 3 (2008) 5 SCC 736 4 (2020) 2 SCC 550 - 8 - NC: 2025:KHC:11230-DB MFA No.2306/2023 date of accident, respondent No.1 the father was hospitalized. Therefore, the victim had taken the motorcycle of respondent No.1 to attend the works of respondent No.1 himself i.e. to fetch insecticide for the agricultural operations of respondent No.1. Therefore, the judgments relied upon by learned counsel for the appellant are not applicable. Though the claim petition was filed under Section 163A of the MV Act, it was open for the Tribunal to consider the claim petition under Section 166 of the MV Act. Thus, the impugned judgment and award is justifiable and appeal shall be dismissed. 13. On consideration of the submissions of both side and on examination of material on record, the point that arises for determination is, "Whether the impugned award is sustainable in law?" Analysis 14. The relationship between the claimants, respondent No.1 and deceased is not in dispute. It is not disputed that respondent No.1 was the owner/insured of the motorcycle bearing No.KA-11-L-0391. It is also not in dispute that Siddaramu (deceased) met with an accident while riding the said motorcycle and died. The claimants' own documents - 9 - NC: 2025:KHC:11230-DB MFA No.2306/2023 Exs.P1 to P6 viz., FIR, complaint, Post Mortem report and charge sheet show that the accident in question occurred due to rash and negligent riding of the motorcycle by the victim himself. There was no other tortfeaser. 15. Further, claimants' own documents show that the deceased was not holding license to ride the motorcycle. Admittedly, the claim petition was under Section 163A of MV Act. So far as the contention that even if the claim petition was under Section 163A of MV Act, the Tribunal can consider the same as the petition under Section 166 of MV Act, necessary corollary of Section 166 of MV Act, there must be wrong doer/ tortfeasor causing injury/damage. If the accident takes place due to rash and negligent riding/driving of the vehicle by the victim himself, at the most Section 163A of the MV Act can be invoked as in such claims, the question of proving the negligence is not contemplated. 16. In this case, accident did not occur due to actionable negligence of any other person. Deceased was responsible for accident due to his own rash and negligent driving that too without a driving license. It appears, that is why the claimants have consciously invoked Section 163A of - 10 - NC: 2025:KHC:11230-DB MFA No.2306/2023 the MV Act. Under Section 163A of the Act, the compensation has to be paid only in accordance with II Schedule of the Act. The deceased was aged 32 years. In awarding compensation, the said schedule has to be followed. However, Tribunal has considered the same as if it is one under Section 166 of MV Act. 17. Deceased was not third party, but he was driving the vehicle of his father/respondent No.1. Therefore he steps into the shoes of the Insured. Ex.R2/insurance policy shows that no premium was paid to cover the risk of the personal accident for the owner/driver. In para 17 of the judgment in Oriental Insurance Co. Ltd. v. Meena Variyal5 the Hon’ble Supreme Court held that the position in Swaran Singh’s case is not a case for the cases other than third party risks. On that count also, the insurer is not liable to pay the compensation. 18. The case on hand is covered by the judgment of Hon'ble Supreme Court in Ningamma's case referred to supra. In Para 14 of the said judgment, it is held as follows: "14. Section 163-A of the MVA was inserted by Act 54 of 1994 by way of a social security scheme. It is needless to say that the said provision is a code by 5 (2007) 5 SCC 428 - 11 - NC: 2025:KHC:11230-DB MFA No.2306/2023 itself. The said provision has been inserted to provide for a new predetermined structured formula for payment of compensation to road accident victims on the basis of age/income of the deceased or the person suffering permanent disablement. In view of the language used in said section there could be no manner of doubt that the said provision has an overriding effect as it contains a non obstante clause in terms whereof the owner of the motor vehicle or the authorised insurer is liable to pay compensation in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be." (Emphasis supplied) 19. While holding that the LRs of the deceased who have stepped into the shoes of the owner do not get compensation under Section 163A of the MV Act, in paragraph- 22 of the judgment in Ningamma's case, Hon'ble Supreme Court said as follows; " 22. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be as provided under - 12 - NC: 2025:KHC:11230-DB MFA No.2306/2023 Section 163-A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the MVA. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the MVA." (Emphasis supplied) 20. In this case, though it was contended that the deceased used the motorcycle of his father, but there was no material to show that he has used the same as his employee as alleged. Therefore, the contention that he did not step into the shoes of the insured respondent No.1 is unacceptable. 21. Further, to claim compensation for insured's own risk, the insured should pay the premium to cover the risk of personal accident. Ex.R.4 - Insurance Policy clearly shows that no premium was paid to cover the risk of personal accident. Under the circumstances, the Tribunal committed gross error in allowing the petition against respondent No.2. - 13 - NC: 2025:KHC:11230-DB MFA No.2306/2023 22. So far as respondent No.1 - owner of the vehicle, as per the claimants' own record, he was not responsible for the accident and the deceased himself was responsible by riding the vehicle without even holding the driving license. Therefore, the petition against him is also not maintainable. 23. For the aforesaid reasons, appeal deserves to be allowed. Hence, the following; ORDER (i) Appeal is allowed. (ii) The impugned judgment and award dated 03.01.2023 is hereby set aside. (iii) The petition in MVC No.665/2019 on the file of the Senior Civil Judge and MACT, Malavalli, is hereby dismissed. (iv) The amount in deposit shall be refunded to the appellant. Pending IAs, if any, stood disposed of. Sd/- (K.S.MUDAGAL) JUDGE Sd/- (K. V. ARAVIND) JUDGE MV, List No.: 1 Sl No.: 41