C. Savitha & Ors. vs HDFC Egro General Insurance Co. Ltd. & Ors.

The Court of XXI Additional Small Causes Judge and The Motor Accident Claims Tribunal (SCCH-23) at Bengaluru, passed an award in MVC No.5263 of 2014 dated 07.03.2017. One Chowdappa R. met with an accident on 15.08.2014 and died subsequently. His wife, daughter and his father filed claim petition claiming compensation of Rs.8,00,000/-. The tribunal, considering the entire evidence on record, granted an amount of Rs.4,31,172/- with interest at the rate of 6% per annum from date of petition till deposit.

Aggrieved by the said order, the claimants preferred MFA No.4762 of 2017 for enhancement of the compensation on the ground that the Tribunal deducted one third towards personal and living expenses while assessing the loss of dependency. The Tribunal is not justified in awarding Rs.2,500/- towards loss of estate. They have spent considerable amount for transporting the dead body. But, the Tribunal lost sight of the fact and failed to grant any amount under the head funeral expenses. The amount granted by the Tribunal under other heads is inadequate and therefore, requested for enhancement of the compensation.

Against the same award, the insurance company also filed MFA No.4988 of 2017 and mainly contended that the Tribunal failed to notice the risk of owner-insured and the deceased is not required to be covered under Section 163A and Section 147 of the MV Act. The deceased was owner of the scooter and he is not a third party. The Tribunal failed to appreciate the evidence adduced by the insurance company regarding non coverage of risk of the owner, as the deceased himself is owner of the vehicle and risk is not required to be covered under the provisions of the MV Act. The insurance company relied upon the citations in the case of Dhanraj Vs. New India Assurance Co. Ltd. reported in 2005 ACJ 1, and in the case of Oriental insurance Company Vs. Jhumasaha reported in AIR 2007 SC 1055, in which the Apex Court has clearly held that the risk of owner/insured is not covered under Section 147 of the MV Act. It is also contended that the Tribunal erred in fixing the liability as 25% negligent against the appellant-insurance company, though deceased was solely negligent in causing the accident. Therefore, requested this Court to set aside the said order.

Heard the arguments of learned counsel for both sides.

The manner of accident according to the petitioners is that, on 15.08.2014, the rider of the scooter bearing No. KA-02-HX-6602 i.e. Chowdappa R. dashed on the back side of the lorry and fell down. The driver of the tipper lorry bearing number KA-40-8070 belonging to the respondent No.2 before the Tribunal insured with respondent No.1 came in a rash and negligent manner, all of a sudden, stopped his lorry without any indication. As a result, the rider of the scooter bearing No. KA-02-HX-6602 dashed the back side of the lorry and fell down and succumbed to injuries. Police filed charge sheet against the driver of the offending lorry and also against Chowdappa R. (deceased). His wife, daughter and father filed claim petition. It is stated that Chowdappa was aged 38 years earning Rs.40,000/- per month from weaving work. The lorry was insured with respondent No.1 before the Tribunal and policy was in force. Therefore, respondent No.1 and respondent No.2 are jointly liable to pay the compensation.

After service of notice, respondent No.2 owner of the offending vehicle before the Tribunal remained absent and set ex parte. Respondent no.3 is owner of the scooter and his legal representatives are already on record. Respondent No.1 -insurer of the offending lorry and respondent No.4 - insurer of the scooter, appeared through their counsel and filed their objections. They disputed their liability by contending that the accident was occurred solely due to the rash and negligence of the rider of the motorcycle. It was occurred due to his own negligence. Therefore, they are not liable to pay the compensation. Respondent No.4 contended that the deceased was owner of his scooter and it was insured with respondent No.4. Therefore, respondent No.4 is not liable to pay the compensation. Respondent No.1 before the Tribunal denied the age, manner of accident and requested the Tribunal to dismiss the application.

The claim petition was filed by the petitioners under Section 163A of the MV Act. PW1 is an eyewitness. She was travelling on a scooter along with her husband and her two kids. Her husband and small daughter died in the accident. She stated that accident occurred due to the negligence of the driver of the offending lorry, who stopped the lorry by applying the brake without any indication. As a result, the rider of the scooter dashed on the back side of the lorry. But the police filed charge sheet against the rider of the motorcycle and also driver of the lorry.

Respondent No.4 before the Tribunal contended that deceased was rider cum RC owner of the scooter involved in the accident and as such, he is not a third party and risk is not covered under the policy and respondent No.4 is not liable to pay the compensation. He relied upon the judgments of the Supreme Court in 2009 ACJ 998 and (2008)5 SCC 736. But, the claimants contended that deceased was 38 years as on the date of accident and accident arose out of the use of offending lorry belonging to the respondent No.2 insured with respondent No.1, and under Section 163A of MV Act, they are not required to prove the negligence. They are entitled for compensation under Section 163A of the MV Act and the second schedule is applicable.

The annual income of the deceased is Rs.40,000/-. Out of which, one third is to be deducted. As he was aged 38 years, the appropriate multiplier is 16. Therefore, the loss of dependency is Rs.4,26,672/- (40,000 – 1/3 = 26,667 x 16). The Tribunal has granted Rs.2,000/- towards funeral expenses and Rs.2,500/- towards loss of the estate and Rs.5,000/-towards loss of consortium and the same is confirmed, the total compensation comes to R.4,36,172/-. The Tribunal observed the claimant is the wife of Chowdappa and she is not RC owner of the vehicle. As on the date of accident, the policy was in existence and fixed up the contributory negligence to that of the driver of the lorry as 75% and that of Chowdappa as 25%, and directed the respondents-insurance companies therein to deposit the amount.

The main contention of the insurance company herein is that the accident was occurred solely due to the negligence of the rider of the motorcycle. But the Tribunal erred in fixing the contributory negligence on the part of the driver of the lorry. The manner of accident shows that the driver of the lorry stopped the vehicle without any indication. As a result, Chowdappa dashed on the back side of the lorry. He along with his daughter died in the accident. Charge sheet is filed against the driver of the lorry and also rider of the motorcycle. The application is filed under Section 163A of MV Act and the claimants are entitled for compensation only if they prove that Chowdappa died by use of motor vehicle. As it is a case of two vehicles, the tribunal has rightly considered the contributory negligence as 75% to that of the driver of the lorry and 25% to that of the rider of the motorcycle and this Court finds no reason to interfere with the said aside order. The Tribunal also has rightly considered all the aspects and granted reasonable compensation. Therefore, the claimants are not entitled for any enhancement of compensation.

In the result, MFA No.4988 of 2017 filed by Insurance Company is dismissed. So also MFA No.4762 of 2017 filed by claimants for enhancement is allowed in part.