Karnataka High CourtShobhawwa W/O Shekar Pujaari vs Tushar Uttam Nagavekar on 1 October, 2020Author:M.NagaprasannaBench:M.NagaprasannaIN THE HIGH COURT OF KARNATAKA\n                      DHARWAD BENCH                       R\n           DATED THIS THE 1ST DAY OF OCTOBER 2020\n\n                           BEFORE\n\n         THE HON'BLE MR. JUSTICE M.NAGAPRASANNA\n\n                   MFA No.22058/2011 (MV)\n                            C/W\n                     MFA No.21929/2012\n                     MFA No.21930/2012\n                     MFA No.22059/2011\n\nIN MFA No.22058/2011\n\nBETWEEN:\n\nTHE DIVISIONAL MANAGER,\nTHE NEW INDIA ASSURANCE CO. LTD.,\nCLUB ROAD, THROUGH ITS REGIONAL MANAGER,\nMTP HUB OFFICE, 2ND FLOOR,\nSRINATH COMPLEX, NEW COTTON PET,\nHUBLI-580 023.\n\n                                               .. APPELLANT\n(BY SRI.R.R.MANE ADV.)\n\nAND:\n\n1.     SRI.TUSHAR S/O UTTAM NAGAVEKAR,\n       AGED: MAJOR, OCC: BUSINESS,\n       R/O HATIS, POST: TANADE,\n       TALUK & DIST: RATNAGIRI-415 612.\n\n2.     SRI.SALIM S/O ISMAIL PATTANWALE,\n       AGE: MAJOR,\n       OCC: BUSINESS & OWNER OF MOTOR CYCLE,\n       R/O PAVAS GHAIDITAL,\n       TALUK & DIST. RATNAGIRI-415 612\n                              2\n\n\n\n\n3.   SMT.SHOBHAWWA W/O SHEKHAR PUJARI,\n     AGE: 23 YEARS, OCC: HOUSEHOLD WORK,\n     R/O SHIVPUR, TALUK: ATHANI-591 304.\n\n4.   KUMARI POOJA D/O SHEKHAR PUJARI,\n     AGE: 7 YEARS,\n     MINOR, REP. BY GUARDIAN MOTHER,\n     SMT SHOBHAWWA W/O SHEKHAR PUJARI,\n     R/O SHIVAPUR,\n     TALUK: ATHANI-591 304.\n\n5.    SMT.GANGAWWA W/O LINGAPPA @ SHIVAPPA PUJARI,\n      AGE: 48 YEARS, OCC: HOUSEHOLD WORK,\n      R/O SHIVAPUR,\n      TALUK: ATHANI-591 304\n                                           .. RESPONDENTS\n(BY SRI.GIRISH S.HIREMATH, ADV. FOR R1,\n    SRI.SANJAY S.KATAGERI, ADV. FOR R3-R5,\n    R2 IS SERVED)\n\n      THIS APPEAL IS FILED UNDER U/SEC.173(1) OF M.V. ACT,\nAGAINST THE JUDGMENT AND AWARD DATED:05.02.2011, PASSED\nIN M.V.C. NO.440/2008 ON THE FILE OF THE PRESIDING OFFICER,\nFAST TRACK COURT-III & ADDL. MACT. BELGAUM AT BELGAUM,\nAWARDING THE COMPENSATION OF RS.4,58,000/- WITH INTEREST\nAT THE RATE OF 8% P.A. FROM THE DATE OF PETITION TILL ITS\nREALIZATION.\n\n\nIN MFA No.21929/2012\n\nBETWEEN:\n\n1.   SMT.SHOBHAWWA W/O SHEKAR PUJARI\n     AGE: 24 YEARS, OCC: HOUSEHOLD WORK,\n\n2.   KUMARI POOJA D/O SHEKAR PUJARI\n     AGE: 8 YEARS, OCC: STUDENT,\n\n3.   GANGAWWA W/O LINGAPPA @ SHIVAPPA PUJARI\n     AGE: 49 YRS, OCC: HOUSEHOLD,\n                                3\n\n\n\n\nAPPELLANT NO.2 MINOR\nREP. BY HER M/G NATURAL MOTHER\nAPPELLANT NO.1,\n\nALL ARE R/O SHIVAPUR,\nTQ: ATHANI,\nDIST: BELGAUM\n\n                                               .. APPELLANTS\n(BY SRI.K.ANANDKUMAR, ADV.)\n\nAND:\n\n1.     TUSHAR UTTAM NAGAVEKAR\n       AGE: MAJOR, OCC: BUSINESS,\n       R/O HATIS, POST: TANADE, TQ: & DIST:\n       RATNAGIRI, MAHARASTRA STATE\n\n2.     SALIM ISMAIL PATTANWALE,\n       AGE: MAJOR, OCC: BUSINESS,\n       R/O PAV AS GHADITAL,\n       TQ. & DIST. RATNAGIRI,\n       MAHARASTRA STATE\n\n3.     THE DIVISIONAL MANAGAER,\n       THE NEW INDIA ASSURANCE CO. LTD.,\n       DO.O.CLUB ROAD, BELGAUM\n\n                                              .. RESPONDENTS\n(BY SRI.GIRISH S.HIREMATH, ADV. FOR R1,\n    SRI.N.R.KUPPELUR, ADV. FOR R3,\n    R2 SERVED)\n\n     THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE\nM.V.ACT TO CALL FOR THE RECORDS AND MODIFY THE JUDGMENT\nAND AWARD DATED 05.02.2011 IN MVC NO.440/2008 PASSED BY\nTHE PRESIDING OFFICER, FAST TRACK COURT-III & ADDL. MACT AT\nBELGAUM BY ENHANCING THE COMPENSATION REASONABLY AND\nADEQUATELY.\n                                4\n\n\n\n\nIN MFA No.21930/2012\n\nBETWEEN:\n\n1.     BHUTALI S/O SIDDAPPA BEAVANUR,\n       AGE: 49 YEARS, OCC: COOLIE,\n       R/O MAYANATTI, TALUK: ATHANI, DIST: BELGAUM.\n\n2.     SMT.SHANTAWWA W/O BHUTALI BEAVANUR,\n       AGE: 42 YEARS, OCC: HOUSEHOLD WORK,\n       R/O MAYANATTI, TALUK: ATHANI, DIST: BELGAUM.\n\n                                                .. APPELLANTS\n(BY SRI.K.ANANDKUMAR, ADV.)\n\nAND:\n\n1.     TUSHAR UTTAM NAGAVEKAR\n       AGE: MAJOR, OCC: BUSINESS,\n       R/O HATIS, POST: TANADE, TQ: & DIST:\n       RATNAGIRI, MAHARASTRA STATE\n\n2.     SALIM ISMAIL PATTANWALE,\n       AGE: MAJOR, OCC: BUSINESS,\n       R/O PAV AS GHADITAL,\n       TQ. & DIST. RATNAGIRI,\n       MAHARASTRA STATE\n\n3.     THE DIVISIONAL MANAGAER,\n       THE NEW INDIA ASSURANCE CO. LTD.,\n       DO.O.CLUB ROAD, BELGAUM\n\n                                              .. RESPONDENTS\n(BY SRI.GIRISH S.HIREMATH, ADV. FOR R1,\n    SRI.N.R.KUPPELUR, ADV. FOR R3)\n\n     THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE\nM.V.ACT TO CALL FOR THE RECORDS AND MODIFY THE JUDGMENT\nAND AWARD DATED 05.02.2011 IN MVC NO.441/2008 PASSED BY\nTHE PRESIDING OFFICER, FAST TRACK COURT-III & ADDL. MACT AT\nBELGAUM BY ENHANCING THE COMPENSATION REASONABLY AND\nADEQUATELY.\n                               5\n\n\n\n\nIN MFA No.22059/2011\n\nBETWEEN:\n\nTHE DIVISIONAL MANAGER,\nTHE NEW INDIA ASSURANCE CO. LTD.,\nCLUB ROAD, THROUGH ITS REGIONAL MANAGER,\nMTP HUB OFFICE, 2ND FLOOR,\nSRINATH COMPLEX, NEW COTTON PET,\nHUBLI-580 023.                                  .. APPELLANT\n\n(BY SRI.R.R.MANE ADV.)\n\nAND:\n\n1.     SRI.TUSHAR S/O UTTAM NAGAVEKAR,\n       AGED: MAJOR, OCC: BUSINESS,\n       R/O HATIS, POST: TANADE,\n       TALUK & DIST: RATNAGIRI-415 612.\n\n2.     SRI.SALIM S/O ISMAIL PATTANWALE,\n       AGE: MAJOR,\n       OCC: BUSINESS & OWNER OF MOTOR CYCLE,\n       R/O PAVAS GHAIDITAL,\n       TALUK & DIST. RATNAGIRI-415 612\n\n3.     SHRI.BHUTALI S/O SIDDAPPA BEAVANUR,\n       AGE: 48 YEARS, OCC: COOLIE WORK,\n       R/O MAYANATTI, TALUK: ATHANI-591304.\n\n4.     SMT.SHANTAWWA W/O BHUTALI BEAVANUR,\n       AGE: 41 YEARS, OCC: HOUSEHOLD WORK,\n       R/O MAYANATTI, TALUK: ATHANI-591304.\n                                               .. RESPONDENTS\n(BY SRI.GIRISH S.HIREMATH, ADV. FOR R1,\n    R2 TO R4 ARE SERVED)\n\n      THIS APPEAL IS FILED UNDER U/SEC.173(1) OF M.V. ACT,\nAGAINST THE JUDGMENT AND AWARD DATED:05.02.2011, PASSED\nIN M.V.C. NO.441/2008 ON THE FILE OF THE PRESIDING OFFICER,\nFAST TRACK COURT-III & ADDL. MACT. BELGAUM AT BELGAUM,\nAWARDING THE COMPENSATION OF RS.3,41,000/- WITH INTEREST\nAT THE RATE OF 8% P.A. FROM THE DATE OF PETITION TILL ITS\nREALIZATION.\n                                 6\n\n\n\n\n      THESE APPEALS HAVING BEEN HEARD AND RESERVED ON\n04.09.2020 COMING ON FOR PROUNCEMENT OF JUDGMENT THIS\nDAY, THE COURT DELIVERED THE FOLLOWING:\n\n\n\n                        JUDGMENTThese appeals underSection 173(1)of the Motor\n\nVehicles Act, 1988 (hereinafter referred to as 'the Act', for\n\nshort) have been filed by the claimants and Insurance\n\nCompany     being   aggrieved       by   the   judgment   dated\n\n05.02.2011 passed by the Presiding Officer Fast Track\n\nCourt-III & Additional MACT, Belagavi in M.V.C.Nos.440\n\nand 441 of 2008.2.    Parties will be referred to as per their ranking\n\nbefore the Claims Tribunal.3.    Facts giving rise to the filing of the appeals\n\nbriefly stated are that, on 08.12.2007 the deceased was\n\nriding a motorcycle bearing Reg.No.MH-08/M-2717 from7Ratnagiri to Pavsas along with his friend, who was a pillion\n\nrider. While riding the motorcycle, the rider lost control of\n\nthe motorcycle and dashed to a road side stone. As a result\n\nof which, the rider of the motorcycle and pillion rider\n\nsustained grievous injuries and died on the spot.4.       The claimants filed a petition invokingSection\n\n163Aof the Act and sought compensation on the ground\n\nthat the deceased was only breadwinner of the family and\n\nhaving lost the sole breadwinner of the family, the\n\nclaimants are put to jeopardy and accordingly, claimed\n\ncompensation to the tune of Rs.10,00,000/- along with\n\ninterest.5.       On service of notice, respondent Nos.1 to 3appeared. Respondent No.2 did not file any statement\n\nobjections.     Respondent    Nos.1   and   3   filed   separate\n\nstatement      of   objections.   Respondent    No.3-Insurance8Company contends that the petition is not maintainable as\n\nthe very question where the legal representatives or\n\nsurviving members of the family of the claimants is itself\n\ndoubtful. The age, avocation and income of the deceased\n\nwere all denied by the Insurance Company. It was also\n\ncontended that the insured has not paid any extra premium\n\nto cover the risk of the pillion rider. Therefore, the\n\nInsurance Company is not at all liable to pay any\n\ncompensation to the claimants.6.   On the basis of the pleadings of the parties, the\n\nClaims Tribunal framed the issues and thereafter recorded\n\nthe evidence.7.   The claimants, in order to prove their case,\n\nexamined two witnesses as P.Ws.1 and 2 and got marked\n\n11 documents namely Exs.P1 to P11. On the other hand,9Insurance Company examined one witness as R.W.1 and\n\ngot marked 7 documents namely Exs.R1 to R7.8.    The   Claims    Tribunal,   by    the   impugned\n\njudgment, inter alia, held that the claimants are entitled to\n\ncompensation     of    Rs.4,58,000/-   and    Rs.3,41,000/-respectively along with interest at the rate of 8% p.a. The\n\nInsurance Company has filed MFA No.22058/2012 and MFA\n\nNo.22059/2011 challenging the quantum of compensation\n\nawarded by the Tribunal in a proceedings arising out ofSection 163Aof the Act in case of a rider of the motorcycle\n\nagainst   whom   the   maximum     compensation    could be\n\nawarded was Rs.1,00,000/-. The claimants have also filed\n\nMFA No. 21929/2012 and MFA No.21930/2012 seeking\n\nenhancement of compensation.9.    I have heard Sri.Ravindra R.Mane, learned\n\ncounsel for the appellant-Insurance Company, Sri.Girish10S.Hiremath,   learned   counsel   for   respondent   No.1,\n\nSri.Sanjay S.Katageri, learned counsel for respondent\n\nNos.3 to 5, Sri.K.Anand Kumar, learned counsel for the\n\nappellant-claimants, Sri.N.R.Kuppelur, learned counsel for\n\nInsurance Company.10.   Learned counsel Sri.R.R.Mane would contend\n\nthat the Tribunal grossly erred in granting compensation of\n\nRs.4,58,000/- in the case of rider of the motorcycle in a\n\nproceeding arising out ofSection 163Aof the Act. He would\n\ncontend that the rider of the motorcycle steps into the\n\nshoes of the owner of the motorcycle and there cannot be\n\nany claim against his own insurer and what would be\n\navailable as compensation to the claimants of the deceased\n\nrider of the motorcycle would be in terms of the contract\n\nbetween owner and the Insurance Company, which is\n\nRs.1,00,000/- to the maximum.     He would place reliance\n\non the following judgments of the Apex Court and this\n\nCourt.11i)      Ningamma           and    Another     Vs   United   India\n              Insurance          Company      Limitedreported     in\n              (2009) 13 Supreme Court Cases 710.ii)     Dhanraj Vs New India Assurance Co. Ltd and\n              Anotherreported in (2004) 8 Supreme Court\n              Cases 553.iii)    Ramkhiladi         and    Another     Vs   United   India\n              Insurance Company and Another reported in\n              (2020) 2 Supreme Court Cases 550.iv)     New      India      Assurance     Company        Ltd.    Vs\n              Sadanand Mukhi & Othersreported in AIR\n              2009 Supreme Court 1788.v)      Oriental Insurance Co.Ltd., Vs Sunita Rathi\n              and Othersreported in (1998) 1 Supreme\n              Court Cases 365.11.    On    the      other       hand,       learned     counsel\n\nSri.K.Anandkumar       appearing        for   the   claimants     would\n\ncontend that, in a claim underSection 163Aof the Act, no\n\nnegligence need to be proved which is immaterial whether\n\nthe   owner   or   a     rider    of    the   vehicle    for   claim   of12compensation, which is akin toSection 166of the Act. He\n\nwould place reliance on the following judgments.i)       Shivaji and Another Vs Divisional Manager,\n              United India Insurance Co.Ltd., and Others\n              in Civil Appeal No.2816/2018.ii)      Chandrakanta Tiwari Vs New India Assurance\n              Company    Ltd.,   &   Another,   Civil   Appeal\n              No.2527/2020.iii)     Deepal Girishbhai Sone and Others Vs United\n              Insurance Co.Ltd, Barodareported in 2004\n              AIR SCW 1864.iv)      United India Insurance Co., Ltd., Vs. Sunil\n              Kumar and Anotherreported in 2018 ACJ 1.v)       MFA No.20884/2010 and connected matter\n              disposed of on 27.11.2019.vi)      MFA    No.23666/2009       disposed       of   on\n              12.06.2020.12.    I have given my anxious consideration to the\n\nsubmissions made by the learned counsel for the parties13and perused the material on record. In terms of the\n\npleadings stated hereinabove and the judgments relied on\n\nby the learned counsel for the parties, the issue that falls\n\nfor my consideration is:"Whether the rider of the vehicle involved\n     in the accident who is not the owner would be\n     entitled to a compensation in a claim underSection 163Aof the Act, if so, to what extent?"13. Statutory Framework:Section 163A forms a part ofChapter XI of the Act.Chapter XI deals with insurance of motor vehicles against\n\nthird party risks.Section 163Aof the Act reads as follows:"163A. Special provisions as to payment\n     of compensation on structured formula basis.--(1) Notwithstanding anything contained in this\n     Act or in any other law for the time being in force or\n     instrument having the force of law, the owner of the\n     motor vehicle or the authorised insurer shall be\n     liable to pay in the case of death or permanent\n     disablement due to accident arising out of the use of14motor vehicle, compensation, as indicated in the\n     Second Schedule, to the legal heirs or the victim, as\n     the case may be.Explanation.--For the purposes of this sub-\n     section, "permanent disability" shall have the same\n     meaning    and     extent    as   in   theWorkmen's\n     Compensation Act, 1923(8 of 1923).(2) In any claim for compensation under sub-\n     section (1), the claimant shall not be required to\n     plead or establish that the death or permanent\n     disablement in respect of which the claim has been\n     made was due to any wrongful act or neglect or\n     default of the owner of the vehicle or vehicles\n     concerned or of any other person.(3) The Central Government may, keeping in\n     view the cost of living by notification in the Official\n     Gazette, from time to time amend the Second\n     Schedule.]"14.   The compensation that is available in a claim\n\nunderSection 163Aof the Act is hedged by the stipulation\n\nmade in the Second Schedule to the legal heirs of the\n\nvictim. The Second Schedule reads as follows:15"THE SECOND SCHEDULE (See Section 163A)\nSCHEDULE FOR COMPENSATION FOR THIRD\nPARTY      FATAL   ACCIDENTS/INJURY            CASES\nCLAIMS1.   (a)    Fatal Accidents:Compensation payable in case of Death shall\n     be five lakh rupees.(b)   Accidents    resulting    in   permanent\n     disability:Compensation      payable   shall    be   =   [Rs.\n     5,00,000/- × percentage disability as perSchedule I of the Employee's Compensation\n     Act, 1923(8 of 1923)] :Provided that the minimum compensation in\n     case of permanent disability of any kind shall\n     not be less than fifty thousand rupees.(c) Accidents resulting in minor injury:A fixed compensation of twenty five thousand\n     rupees shall be payable:2.   On and from the date of 1st day of January,\n     2019 the amount of compensation specified in\n     the clauses (a) to (c) of paragraph (1) shall\n     stand increased by 5 per cent annually".163.    This notification shall come into form on the\n           date of its publication in the Official Gazette."15.   The comparative age, application of multiplier\n\nand income are all stipulated in the Second Schedule, the\n\nheading of which reads as follows:"Schedule for Compensation for Third Party\n     Fatal Accidents/Injury Cases Claims."16.   Thus, Chapter XI under which Section 163A falls\n\nand the Schedule appended to Section 163A makes it\n\nunmistakably clear that the claims are maintainable only\n\nagainst third party risks.17.   In the case on hand, the claim was made by the\n\nclaimants in MVC No.440/2008 for the death of the\n\ndeceased, who was rider of the motorcycle and the\n\nTribunal has granted compensation of Rs.4,58,000/-. At\n\nthis juncture, it is necessary to consider the line of law as17laid down bythe Apex Court and this Court, which are\n\nrelied on by the respective counsel appearing for the\n\nparties.18.     The   Apex   Court    in   the   case   ofDeepal\n\nGirishbhai Soni(supra), has held as follows:" 67. We, therefore, are of the opinion\n     that Kodala [(2001) 5 SCC 175 : 2001 SCC (Cri)\n     857] has correctly been decided. However, we\n     do not agree with the findings in Kodala [(2001)\n     5 SCC 175 : 2001 SCC (Cri) 857] that if a person\n     invokes provisions of Section 163-A, the annual\n     income of Rs 40,000 per annum shall be treated\n     as a cap. In our opinion, the proceeding under\n     Section 163-A being a social security provision,\n     providing for a distinct scheme, only those\n     whose annual income is up to Rs 40,000 can\n     take the benefit thereof. All other claims are\n     required to be determined in terms ofChapter\n     XII of the Act."1819.   The Apex Court in the case of Shivaji and\n\nAnother (supra) has held as follows:3. The insurer preferred an appeal before the\n     High Court of Karnataka. The appellants also\n     filed an appeal before the High Court seeking\n     enhancement of compensation awarded by the\n     Tribunal. The High Court, by its impugned\n     judgment [United India Insurance Co. Ltd. v. V.\n     Nallathai, 2017 SCC OnLine Kar 4521] , allowed\n     the insurer's appeal and set aside the order of\n     the Tribunal. The High Court opined that the idea\n     behind enacting Section 163-A is to ensure that\n     even in the absence of any mistake on the part\n     of the driver of the offending vehicle, the injured\n     person or the legal heirs of the deceased person\n     are compensated by the owner and the insurer.As a result, under this provision, since the victim\n     has been contemplated to be an innocent third\n     party, protection is extended only to the injured\n     person or to the legal heirs of the deceased\n     victim, and not to the driver who is responsible\n     for causing the said accident. Since the deceased\n     driver in this case was the tortfeasor and\n     responsible for causing the accident, the High19Court held that compensation could not have\nbeen awarded to the appellants.4. The issue which arises before us is no\nlonger res integra and is covered by a recent\njudgment of three Judges of this Court inUnited\nIndia Insurance Co. Ltd. v. Sunil Kumar [United\nIndia Insurance Co. Ltd.v. Sunil Kumar, (2019)\n12 SCC 398 : AIR 2017 SC 5710] , wherein it\nwas held that to permit a defence of negligence\nof    the   claimant   by   the     insurer   and/or   to\nunderstandSection     163-Aof   the   Act   as\ncontemplating     such      a    situation,   would    be\ninconsistent with the legislative object behind\nintroduction of this provision, which is "final\ncompensation within a limited time frame on the\nbasis of the structured formula to overcome\nsituations where the claims of compensation on\nthe basis of fault liability were taking an unduly\nlong time". The Court observed that if an insurer\nwas permitted to raise a defence of negligence\nunderSection 163-Aof the Act, it would "bring a\nproceeding underSection 163-Aof the Act on a\npar with the proceeding underSection 166of the\nAct which would not only be self-contradictory20but also defeat the very legislative intention".\n     Consequently, it was held that in a proceeding\n     underSection 163-Aof the Act, the insurer\n     cannot raise any defence of negligence on the\n     part of the victim to counter a claim for\n     compensation.20.    The Apex Court in the case ofSunil Kumar and\n\nAnother(supra) has held as follows:8. From the above discussion, it is clear that\n     grant of compensation underSection 163-Aof\n     the Act on the basis of the structured formula is\n     in    the   nature    of   a        final        award   and     the\n     adjudication thereunder is required to be made\n     without     any   requirement               of    any    proof    of\n     negligence of the driver/owner of the vehicle(s)\n     involved in the accident. This is made explicit by\n     Section 163-A(2). Though the aforesaid section\n     of the Act does not specifically exclude a possible\n     defence of the insurer based on the negligence\n     of the claimant as contemplated by Section\n     140(4), to permit such defence to be introduced\n     by    the   insurer    and/or          to        understand      the21provisions ofSection 163-Aof the Act to be\n     contemplating      any    such     situation      would    go\n     contrary to the very legislative object behind\n     introduction ofSection 163-Aof the Act, namely,\n     final compensation within a limited time-frame\n     on the basis of          the structured formula to\n     overcome       situations     where    the        claims   of\n     compensation on the basis of fault liability were\n     taking    an    unduly      long   time.     In    fact,   to\n     understandSection 163-Aof the Act to permit\n     the insurer to raise the defence of negligence\n     would be to bring a proceeding underSection\n     163-Aof the Act on a par with the proceeding\n     underSection 166of the Act which would not\n     only be self-contradictory but also defeat the\n     very legislative intention.21.    The Apex Court in the case ofChandrakanta\n\nTiwari(supra) has held as follows:9. Finally, given that the deceased was aged\n      28 years and that income was not proved,\n      income was taken to be Rs. 36,000/- per\n      annum minus one-third, which made it Rs.2224,000/- per annum. The Multiplier was taken\nto be 8, keeping in view the old age of the\nclaimant    and   accordingly,      a    sum    of   Rs.\n1,92,000/- was arrived at. In addition thereto,\nRs. 2000/- was given as funeral expenses, Rs.\n5000/- as loss of consortium, making it a total\nof Rs. 1,99,000/- together with simple interest\nat the rate of 6 per cent per annum on this\namount from the date of filing of the claim\npetition up to the date of actual payment.10. The    High    Court,    by       the   impugned\njudgment,     allowed    the     appeal        of    the\ninsurance company stating that the claimant,\nnot being an eye witness, could not possibly\ngive evidence as to the accident that took\nplace, as a result of which, the Section 163A\npetition would have to be dismissed. Also,\nnothing was brought on record to show that the\ndeceased was having a valid driving license.\nThis would also, therefore, take the case\noutside the insurance policy, as a result of\nwhich, the appeal would deserve to be allowed\non this ground also.11. Section 163A reads as follows:23163A. Special provisions as to payment of\n  compensation on structured formula basis.--(1) Notwithstanding anything contained in this Act\n  or in any other law for the time being in force\n  or instrument having the force of law, the\n  owner of the motor vehicle or the authorised\n  insurer shall be liable to pay in the case of\n  death     or   permanent        disablement        due   to\n  accident arising out of the use of motor vehicle,\n  compensation,       as   indicated      in   the   Second\n  Schedule, to the legal heirs or the victim, as\n  the case may be.Explanation.--For the purposes of this sub-\n  section, "permanent disability" shall have the\n  same meaning and extent as in theWorkmen's\n  Compensation Act, 1923(8 of 1923).(2) In any claim for compensation under sub-\n  section (1), the claimant shall not be required\n  to    plead    or   establish    that    the   death     or\n  permanent disablement in respect of which the\n  claim has been made was due to any wrongful\n  act or neglect or default of the owner of the\n  vehicle or vehicles concerned or of any other\n  person.24(3) The Central Government may, keeping in view\n  the cost of living by notification in the Official\n  Gazette, from time to time amend the Second\n  Schedule.12. A perusal of this provision would show\n  that Shri Sahoo is correct in stating that the\n  claimant need not plead or establish that the\n  death in respect of which the claim was made,\n  was due to any negligence or default of the\n  owner of the vehicle or of any other person.(emphasis supplied)13. In this view of the matter, it is not\n  relevant that the person insured must be the\n  driver of the vehicle but may well have been\n  riding with somebody else driving a vehicle\n  which resulted in the death of the person\n  driving the vehicle. The High Court, therefore,\n  is clearly wrong in stating that it was necessary\n  under Section 163A to prove that somebody\n  else   was   driving   the   vehicle   rashly   and\n  negligently, as a result of which, the death of\n  the victim would take place.14. Further, it is also clear, as has been\n  pointed out hereinabove, that so far as the25driving licence aspect of the case is concerned,\n      it    was    squarely         given     up    by     the\n      insurance company before the MACT, but then\n      utilised by the High Court to disentitle the\n      claimant to relief. On this ground also, the High\n      Court is incorrect.15. Coming to the argument based on the\n      maximum      liability   being    Rs.   1    lakh,   this\n      argument was never taken before in all the\n      courts below, as a result of which, we do not\n      allow the insurance company to take up the\n      point for the first time before us at this stage.All the afore-quoted judgments of the Apex Court dealt and\n\ndecided the fact, and the negligence need not be proved in\n\na proceeding underSection 163Aof the Act.22.    The issue that arose in MFA No.20884/2010 c/w\n\nMFA No.20885/2010 disposed of on 27.11.2019 was with\n\nregard to principle of pay and recover, which is not the\n\nissue in the case on hand.2623.   The issue that arose in MFA No.23666/2009\n\ndisposed of on 12.06.2020 was also of pay and recover.The learned Coordinate Bench only followed the decision of\n\nthe learned Full Bench.       Both the afore-quoted two\n\njudgments of the Coordinate Bench are not applicable to\n\nthe facts obtaining in the case of hand.24.   All the cases inter alia, which the learned\n\ncounsel for the claimants relied on primarily pertains to the\n\nissue whether a plea of negligence could be raised by the\n\nInsurance Company to defeat the claim of the claimants in\n\ncase of a death or an injury and the Apex Court and this\n\nCourt have categorically held that plea of negligence\n\ncannot be raised as a defence by the Insurance Company\n\nto deny the compensation.25.   The issue in the case on hand is not with regard\n\nto plea of negligence. Hence, the entire line of judgments27relied on by the learned counsel for the claimants are\n\ninapplicable to the facts of the case on hand. The issue\n\nconcerning whether rider of the vehicle who is not the\n\nowner would be entitled to compensation islaid down bythe Apex Court inNingamma and Another(supra),\n\nwherein the Apex Court held as follows:15. A   number   of        decisions   have   been\n     rendered by this Court in respect of Section 163-A     of    the   MVA.InDeepal    Girishbhai\n     Soni v. United India Insurance Co. Ltd.[(2004) 5\n     SCC 385 : 2004 SCC (Cri) 1623] , at p. 402, one\n     of us (Hon'ble S.B. Sinha, J.) has observed as\n     follows: (SCC p. 402, para 42)\n         "42. Section 163-A was, thus, enacted for\n     grant of immediate relief to a section of the\n     people whose annual income is not more than Rs\n     40,000 having regard to the fact that in terms ofSection 163-Aof the Act read with the Second\n     Schedule appended thereto, compensation is to\n     be paid on a structured formula not only having\n     regard to the age of the victim and his income\n     but also the other factors relevant therefor. An\n     award made thereunder, therefore, shall be in28full and final settlement of the claim as would\nappear from the different columns contained in\nthe Second Schedule appended to the Act. The\nsame      is    not   interim     in   nature.    The     note\nappended to Column 1 which deals with fatal\naccidents makes the position furthermore clear\nstating        that   from      the    total     amount     of\ncompensation one-third thereof is to be reduced\nin consideration of the expenses which the victim\nwould have incurred towards maintaining himself\nhad he been alive. This together with the other\nheads of compensation as contained in Columns\n2 to 6 thereof leaves no manner of doubt that\nParliament intended to lay a comprehensive\nscheme for the purpose of grant of adequate\ncompensation to a section of victims who would\nrequire the amount of compensation without\nfighting any protracted litigation for proving that\nthe accident occurred owing to negligence on the\npart of the driver of the motor vehicle or any\nother fault arising out of use of a motor vehicle."2926.   Thus, after considering the judgment of the\n\nApex Court in the case ofDeepal Girishbhai Soni(supra) relied on by the learned counsel for the claimants,\n\nthe Apex Court has held as follows:20. It was held in Oriental Insurance Co. Ltd.case [(2008) 5 SCC 736 : (2008) 3 SCC (Cri)\n     67] that Section 163-A of the MVA cannot be\n     said to have any application in respect of an\n     accident wherein the owner of the motor vehicle\n     himself is involved. The decision further held\n     that the question is no longer res integra. The\n     liability under Section 163-A of the MVA is on the\n     owner of the vehicle. So a person cannot be\n     both, a claimant as also a recipient, with respect\n     to claim. Therefore, the heirs of the deceased\n     could not have maintained a claim in terms of\n     Section 163-A of the MVA.21.In our considered opinion, the ratio of the\n     decision   inOriental        Insurance   Co.   Ltd.case [(2008) 5 SCC 736 : (2008) 3 SCC (Cri)\n     67] is clearly applicable to the facts of the\n     present case. In the present case, the deceased\n     was not the owner of the motorbike in question.30He borrowed the said motorbike from its real\nowner. The deceased cannot be held to be an\nemployee      of    the   owner    of    the        motorbike\nalthough he was authorised to drive the said\nvehicle by its owner and, therefore, he would\nstep   into   the    shoes    of   the   owner        of   the\nmotorbike. We have already extracted Section\n163-A of the MVA hereinbefore. A bare perusal\nof the said provision would make it explicitly\nclear that persons like the deceased in the\npresent case would step into the shoes of the\nowner of the vehicle.22. In a case wherein the victim died or\nwhere he was permanently disabled due to an\naccident arising out of the aforesaid motor\nvehicle in that event the liability to make\npayment       of    the   compensation         is    on    the\ninsurance company or the owner, as the case\nmay be as provided under Section 163-A. But if\nit is proved that the driver is the owner of the\nmotor vehicle,in that casethe owner could not\nhimself be a recipient of compensation as the\nliability to pay the same is on him. This\nproposition is absolutely clear on a reading of\nSection 163-A of the MVA. Accordingly, the legal31representatives   of   the     deceased   who   have\n     stepped into the shoes of the owner of the motor\n     vehicle could not have claimed compensation\n     under Section 163-A of the MVA.27.   Subsequently, the Apex Court in the case of\n\nRamkhiladi and Another(supra) considering the entire\n\nspectrum of law in a claim arising out ofSection 163Aof\n\nthe Act has held as follows:9.1    The learned Tribunal held that even in\n     absence of the driver, owner and the insurance\n     company of another vehicle involved in an\n     accident and whose driver was solely negligent,\n     the application underSection 163Aof the Act\n     would be maintainable against the owner and\n     the insurance company of the vehicle which was\n     driven by the deceased himself, firstly on the\n     ground that the deceased was in employment of\n     the owner of the vehicle which was driven by\n     him    and     secondly,       in   an    application\n     underSection 163Aof the Act, the negligence is\n     not required to be established and proved and it\n     is enough to establish and prove that the32deceased has died in a vehicular accident and\nwhile driving a vehicle. The High Court has not\nagreed with the same and by the impugned\nJudgment and Order has held that as the\nclaimants have not filed the claim petition\nagainst the owner of another vehicle whose\ndriver was in fact negligent, even as per the\nclaimants and the claim petition should have\nbeen filed by the claimants against the owner of\nanother vehicle to seek the compensation, the\napplication   underSection       163Aof     the     Act\nagainst the insurance company of the vehicle\ndriven by the deceased himself is liable to be\ndismissed.9.4      An   identical    question     came    to    be\nconsidered    by   this   Court    in   the    case    ofNingamma(supra). In that case, the deceased\nwas driving a motorcycle which was borrowed\nfrom its real owner and met with an accident by\ndashing against a bullock cart i.e. without\ninvolving any other vehicle. The claim petition\nwas filed underSection 163Aof the Act by the\nlegal representatives of the deceased against33the real owner of the motorcycle which was\nbeing driven by the deceased. To that, this\nCourt has observed and held that since the\ndeceased has stepped into the shoes of the\nowner of the vehicle,Section 163Aof the Act\ncannot apply wherein the owner of the vehicle\nhimself is involved. Consequently, it was held\nthat the legal representatives of the deceased\ncould   not   have   claimed   the   compensation\nunderSection 163Aof the Act. Therefore, as\nsuch, in the present case, the claimants could\nhave even claimed the compensation and/or\nfiled the claim petition underSection 163Aof\nthe Act against the driver, owner and insurance\ncompany of the offending vehicle i.e. motorcycle\nbearing registration No. RJ 29 2M 9223, being a\nthird party with respect to the offending vehicle.However, no claim under Section 163A was filed\nagainst the driver, owner and/or insurance\ncompany of the motorcycle bearing registration\nNo. RJ 29 2M 9223. It is an admitted position\nthat the claim underSection 163Aof the Act\nwas only against the owner and the insurance\ncompany of the motorcycle bearing registration\nNo. RJ 02 SA 7811 which was borrowed by the34deceased from the opponent owner Bhagwan\nSahay. Therefore, applying the lawlaid down bythis Court in the case ofNingamma(supra), and\nas the deceased has stepped into the shoes of\nthe owner of the vehicle bearing registration No.\nRJ 02 SA 7811, as rightly held by the High\nCourt, the claim petition underSection 163Aof\nthe   Act    against    the    owner      and   insurance\ncompany of the vehicle bearing registration No.\nRJ 02 SA 7811 shall not be maintainable.9.5     It is true that, in a claim underSection\n163Aof the Act, there is no need for the\nclaimants to plead or establish the negligence\nand/or that the death in respect of which the\nclaim petition is sought to be established was\ndue to wrongful act, neglect or default of the\nowner of the vehicle concerned. It is also true\nthat the claim petition underSection 163Aof\nthe Act is based on the principle of no fault\nliability.   However,    at        the   same   time,   the\ndeceased has to be a third party and cannot\nmaintain a claim underSection 163Aof the Act\nagainst the owner/insurer of the vehicle which is\nborrowed by him as he will be in the shoes of35the owner and he cannot maintain a claim\nunderSection 163Aof the Act against the owner\nand insurer of the vehicle bearing registration\nNo. RJ 02 SA 7811. In the present case, the\nparties    are      governed       by   the    contract   of\ninsurance and under the contract of insurance\nthe liability of the insurance company would be\nqua third party only. In the present case, as\nobserved hereinabove, the deceased cannot be\nsaid to be a third party with respect to the\ninsured vehicle bearing registration No. RJ 02\nSA 7811. There cannot be any dispute that the\nliability of the insurance company would be as\nper the terms and conditions of the contract of\ninsurance. As held by this Court in the case ofDhanraj(supra), an insurance policy covers the\nliability incurred by the insured in respect of\ndeath     of   or    bodily    injury     to   any   person\n(including     an    owner     of   the    goods     or   his\nauthorized representative) carried in the vehicle\nor damage to any property of a third party\ncaused by or arising out of the use of the\nvehicle. Inthe said decision, it is further held by\nthis Court that Section 147 does not require an36insurance company to assume risk for death or\nbodily injury to the owner of the vehicle.9.6   In view of the above and for the reasons\nstated above, in the present case, as the claim\nunderSection 163Aof the Act was made only\nagainst the owner and insurance company of the\nvehicle which was being driven by the deceased\nhimself as borrower of the vehicle from the\nowner of the vehicle and he would be in the\nshoes of the owner, the High Court has rightly\nobserved and held that such a claim was not\nmaintainable and the claimants ought to have\njoined and/or ought to have made the claim\nunderSection   163Aof      the   Act   against   the\ndriver, owner and/or the insurance company of\nthe offending vehicle i.e. RJ 29 2M 9223 being a\nthird party to the said vehicle.9.8    However, at the same time, even as per\nthe contract of insurance, in case of personal\naccident the owner driver is entitled to a sum of\nRs.1 lakh. Therefore, the deceased, as observed\nhereinabove, who would be in the shoes of the\nowner shall be entitled to a sum of Rs.1 lakh,\neven as per the contract of insurance. However,37it is the case on behalf of the original claimants\nthat there is an amendment to the 2 nd\nSchedule and a fixed amount of Rs.5 lakh has\nbeen specified in case of death and therefore\nthe claimants shall be entitled to Rs.5 lakh. The\nsame cannot be accepted. In the present case,\nthe accident took place in the year 2006 and\neven the Judgment and Award was passed by\nthe learned Tribunal in the year 2009, and the\nimpugned Judgment and Order has been passed\nby the High Court in 10.05.2018, i.e. much prior\nto the amendment in the 2nd Schedule. In the\nfacts and circumstance of the present case, the\nclaimants shall not be entitled to the benefit of\nthe amendment to the 2 nd Schedule. At the\nsame    time,   as   observed   hereinabove,   the\nclaimants shall be entitled to Rs.1 lakh as per\nthe terms of the contract of insurance, the\ndriver being in the shoes of the owner of the\nvehicle.10.   In view of the above and for the\nreasons stated above, the present appeal is\npartly allowed to the aforesaid extent and it is\nobserved and held that the original claimants38shall be entitled to a sum of Rs.1 lakh only with\n     interest @ 7.5 per cent per annum from the date\n     of the claim petition till realization. In the facts\n     and circumstance of the present case, there shall\n     be no order as to costs.28.   In terms of the afore-extracted lawlaid down bythe Apex Court, it becomes unmistakably clear that the\n\nrider of the vehicle, if he is not the owner, but has\n\nborrowed the vehicle from the owner steps into the shoes\n\nof the owner and would be entitled to compensation only to\n\nthe extent of the contract between the owner and the\n\ninsurer.29.   In the case on hand, Ex.R1 is the insurance\n\npolicy placed before the Tribunal. A cursory perusal of the\n\ninsurance policy would indicate that P.A.(Personal Accident)\n\ncover of Rs.50/- is collected by the Insurance Company as\n\npremium and in terms of the contract for a P.A. cover, the\n\nmaximum compensation available is Rs.1,00,000/- to the39owner of the vehicle.In the light of the compensation\n\nunder P.A. covers to the owner being only Rs.1,00,000/-,\n\nthe rider of the vehicle in MVC No.440/2008 cannot be\n\nentitled to a compensation which could be more than\n\nRs.1,00,000/-, in terms of the lawlaid down bythe Apex\n\nCourt in the afore-stated cases, as he steps into the shoes\n\nof the owner and would be entitled a compensation only of\n\nRs.1,00,000/- as against Rs.4,58,000/- determined by the\n\nTribunal.30.Insofar as the judgment of the Apex Court in\n\nthe case ofChandrakanta Tiwari(supra), though the\n\nApex Court has sustained the compensation that was\n\ngranted by the Tribunal, did not go into the issue of\n\nwhether the maximum liability in a proceeding underSection 163Aof the Act was Rs.1,00,000/- or otherwise, as\n\nthe Insurance Company has taken the said plea for the first\n\ntime before the Apex Court. The facts before the Apex\n\nCourt would clearly indicate that, it was a claim of a pillion40rider and not the rider.Hence, the judgment of the Apex\n\nCourt in the case ofChandrakanta Tiwari(supra) also\n\nwould not be applicable to the facts of the case on hand.31.    The lawlaid down bythe Apex Court in the case\n\nof Ramkhiladi and Another (supra) would be applicable\n\nto    the    facts   of   the    case       on       hand.   Hence,      MFA\n\nNo.22058/2011         filed     by        the        Insurance     Company\n\nchallenging quantum of compensation is allowed in part\n\nand    compensation       of    Rs.4,58,000/-           awarded     by   the\n\nTribunal is reduced to Rs.1,00,000/-. Needless to state that\n\nthe claimants are entitled to interest at the rate of 6% p.a.\n\nfrom the date of petition till its satisfaction by the\n\nInsurance Company. MFA No.21929/2012 filed by the\n\nclaimants is dismissed.32.    MFA    No.22059/2011              is     preferred   by    the\n\nInsurance       Company         challenging           the    quantum      of41compensation awarded by the Tribunal concerning the\n\ndeath of a pillion rider. The only head under which the\n\ncompensation is to be reduced in case of death of a pillion\n\nrider is with regard to compensation awarded under\n\nstatutory heads. Under Second Schedule appended toSection 163Aof the Act, the maximum compensation in\n\ncase of death under Clause 3 General Damages (in case of\n\ndeath), which reads as follows:(i) Funeral expenses                          Rs.2,000(ii) Loss of Consortium, if beneficiary is the Rs.5,000\n      spouse(iii) Loss of Estate                           Rs.2,500\n      Total                                    Rs.9,50033.   Hence,   the   compensation   awarded   by     the\n\nTribunal under afore-stated heads is reduced to Rs.9,500/-as against Rs.35,000/- awarded by the Tribunal. Hence,\n\nMFA No.22059/2011 filed by the Insurance Company is\n\nallowed in part. The claimants are entitled to total\n\ncompensation of Rs.3,15,500/- as against Rs.3,41,000/-awarded by the Tribunal. Needless to state that the42claimants are entitled to interest at the rate of 6% p.a.\n\nfrom the date of petition till its satisfaction by the\n\nInsurance Company.34.    Hence, the following:ORDERi)        MFA No.22058/2011 filed by the Insurance\n\n               Company          challenging          quantum      of\n\n               compensation          is   allowed    in   part   and\n\n               compensation of Rs.4,58,000/- awarded by\n\n               the Tribunal is reduced to Rs.1,00,000/-.ii)       MFA No.22059/2011 filed by the Insurance\n\n               Company is allowed in part. The claimants\n\n               are   entitled    to       total   compensation    of\n\n               Rs.3,15,500/-         as    against    Rs.3,41,000/-awarded by the Tribunal.iii)      Needless to state that the claimants are\n\n               entitled to interest at the rate of 6% p.a.43from the date of petition till its satisfaction\n\n              by the Insurance Company.iv)   To the aforesaid extent, the judgment of the\n\n              Claims Tribunal is modified.v)    The amount in deposit, if any, shall be\n\n              transferred to the Tribunal forthwith.vi)   MFA     No.21929/2012          and        MFA\n\n              No.21930/2012 filed by the claimants are\n\n              dismissed.Sd/-JUDGE\n\nMBS/-