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2018 DIGILAW 89 (KAR)

NEW INDIA ASSURANCE COMPANY LTD. v. A. RAMAMANI

2018-01-11

RATHNAKALA

body2018
JUDGMENT : This is Insurer’s appeal challenging the judgment and award passed in M.V.C.No.5044/2008 by the III Addl.Judge and M.A.C.T., Bangalore (for brevity ‘the Tribunal’) whereby the claimants’ application under Section 163A of the Motor Vehicles Act, 1988 (‘the Act’ for brevity) consequent upon the death of one T.Narasimharaju came to be allowed by awarding compensation of Rs.4,10,500/with interest @ 6% per annum. 2. Sri.S.V.Hegde Mulkhand, learned Counsel appearing for the appellant/Insurer submits that, on the very showing of the claimants, the deceased was riding a motor cycle and hit the opposite lorry from behind. Since it was an accident involving two motor vehicles, the Tribunal having framed an issue regarding user of the Tipper lorry (offending vehicle) by its owner ought to have noticed that accident occurred due to the user of the motor cycle ridden by the deceased also. As per Rule 23 of the Rules of Road Regulations, 1989, the driver of a motor vehicle moving behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop. That being a mandatory provision, the accident having taken place due to collision between the Tipper lorry and motor bike, which was proceeding behind the Tipper lorry and the rider of the said motor bike since equally responsible, the Insurer cannot be fastened with the liability of complying the entire award. Hence, this Court may modify the judgment and award of the Tribunal having regard to the fact that accident has occurred due to the user of two vehicles by its riders. 3. In reply, Sri.Shripad V.Shastri, learned Counsel appearing for respondent Nos.1 to 3/claimants submits that, the Full Bench of Apex Court in a reference case i.e., United India Insurance Company Ltd. Vs. Sunil Kumar and Another reported in 2017 SCC Online SC 1443, framed a question of law viz., “Whether in a claim proceeding under Section 163A of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”), it is open for the Insurer to raise the defence/plea of negligence?” and the said question of law is answered negatively and now it is not open for the Insurer to contend that the owner of the motor bike was also equally responsible for the accident. Learned Counsel taking through the issue framed by the Tribunal as below: “Whether the petitioners prove that T.Narasimharaju had succumbed to death due to motor vehicle accident hat was taken place on 13-02-2008 at about 4.15 p.m. on Nagarbhavi Ring Road, near Sub Registrar Office, Bangalore, due to user of Tipper Lorry bearing No.KL07P1593, by its driver?” submits that the issue is answered affirmatively on the basis of the evidence placed on record and the Insurer is also not disputing the fact that the Tipper Lorry bearing No.KL07/P1593 was under use during the accident. The contention of the Insurer that user of the motor bike is also responsible for the accident, if entertained, that amounts to holding both the riders guilty of contributory negligence and contending the percentage of negligence is not permissible in view of the finding of the Apex Court in Sunil Kumar’s case (supra). Learned Counsel further submits, the appellants being the young widow and aged parents of the deceased are awarded a humble compensation of Rs.4,10,500/and in the scheme of Section 163A of the Act, it is not permissible to hold the deceased partly responsible for the accident. Hence, the appeal may be dismissed. 4. With the above rival submissions and in the light of the admitted facts, I find that, it is quite possible that even if the driver of the Tipper Lorry suddenly stopped the vehicle without giving signal, the very fact that the motor bike hit the lorry from behind would probabalise that he was not following the mandate of Rule 23 of the Rules of Road Regulations, 1989. 5. Section 163A of the Act is brought into statute to effectuate the liability to pay compensation on the principle of ‘no fault’ as envisaged under Section 140 of the Act. Section 163A of the Act being independent of Section 166 of the Act, having been enforced to address the victims of the motor vehicle accident, who may not be able to establish the neglect or default on the part of the driver of the offending vehicle, to achieve social justice, now the liability of the accident cannot either be shifted or bifurcated. In that view of the matter, this Court is unable to endorse the submission made by Sri.S.V.Hegde Mulkhand to modify the judgment and award impugned. Accordingly, the appeal is dismissed. No order as to costs. In that view of the matter, this Court is unable to endorse the submission made by Sri.S.V.Hegde Mulkhand to modify the judgment and award impugned. Accordingly, the appeal is dismissed. No order as to costs. Registry is directed to return the LCR and remit the amount in deposit to the concerned Tribunal for disbursal. The appellant/Insurer shall deposit the balance amount within three weeks from the date of receipt of certified copy of this order thereupon the Insurer shall disburse the amount as per the order of the Tribunal.