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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.10835 OF 2013(MV)
BETWEEN:
C.M.MURTHY
S/O LATE MUDDAPPA
HINDU AGED 39 YEARS
R/OF CHANUVALLI, NARASIPURA POST
NELAMANGALA TALUK
BANGALORE RURAL DISTRICT
NOW R/AT NO.14,5TH MAIN
4TH CROSS, RANGANATHA NILAYA
DASARAHALLI, BANGALORE-73.
... APPELLANT
(BY SRI.T.C.SATHISHKUMAR, ADV. )
AND
1. CHINNASWAMY P.
S/O POTHARAJ, HINDU MAJOR
R/AT NO.10, S.S.S. BUILDING
1ST MAIN, A.V. ROAD
CHAMARAJPET, BANGALORE-18.
2. THE BRANCH MANAGER
SHRIRAM GENERAL INSURANCE CO. LTD.,
NO-E-8, RICO INDUSTRIAL AREA
2
SITAPURA, JAIPURA
RAJASTHAN-302022.
... RESPONDENTS
(BY SRI. B.PRADEEP, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED:08.07.2016)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 15.10.2013 PASSED IN MVC NO.6183/2012
ON THE FILE OF THE XXI ADDITIONAL SMALL CAUSES
JUDGE, & XIX ACMM, MEMBER, MACT, COURT OF
SMALL CAUSES, BANGALORE, DISMISSING THE
CLAIM PETITION FOR COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimant being aggrieved by the judgment dated 15.10.2013 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal briefly stated are that on 9.9.2020 when the claimant 3 along with wife, who was nine months pregnant were proceeding on motorcycle Bearing registration No.KA- 06-K-1735 from his village towards Tumkur Road on NH4 road, near Chikahalli gate, at that time, a lorry bearing registration No.KA-01-B-5776 which was being driven in a rash and negligent manner, dashed against the motorcycle of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and his wife, who was a pillion rider fell down and sustained grievous injuries and succumbed to the injuries on the spot.
3. The claimant filed a petition under Section 166 of the Act on the ground that he has already made claim with regard to death of his wife and also injuries sustained by him, but had not made claim for the death of 9 months female fetus. The claimant claimed compensation to the tune of Rs.5,40,000/- along with interest.
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4. On service of summons, the respondent No.2 appeared through counsel and filed written statement in which the averments made in the petition were denied. It was pleaded that the petition itself is false and frivolous in the eye of law. The liability is subject to terms and conditions of the policy. Mandatory provisions of Section 134(C) and 158(6) of MV Act are not complied with. Hence, he sought for dismissal of the petition. The respondent No.1 did not appear inspite of service of notice and was placed ex-parte.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant, in order to prove his case, examined claimant No.1 as PW-1 and got exhibited documents namely Ex.P1 to Ex.P11. On behalf of respondents, neither any witness was 5 examined nor any document was produced. The Claims Tribunal, by the impugned judgment, inter alia, dismissed the claim petition. Being aggrieved, this appeal has been filed.
6. The learned counsel for the claimant has contended that the claimant had already filed claim petitions i.e., MVC 7242/2010 and 7243/2010 claiming compensation for death of his wife and also injuries sustained to him in the road traffic accident occurred on 9.9.2010 due to rash and negligent driving of the offending vehicle. But, he had not made claim for the death of 9 months female fetus. The Tribunal by judgment and award dated 25.5.2012 had granted compensation in respect of death of his wife and also injuries sustained to him. But in respect of death of 9 months fetus no claim was made. In support of his case he has relied upon the judgment of the this Court in the case of Shanthaveerappa and 6 another -v- ICICI Lombard General Insurance Co. Ltd. and others reported in 2020 ACJ 1504, Hence, he prays for allowing the appeal.
7. On the other hand, the learned counsel for the Insurance Company has contended that it is very clear from the judgment of the Tribunal dated 25.5.2012 passed in MVC 7242/2010 and 7243/2010, even if no claim was made for death of 9 months fetus, the Tribunal had granted a sum of Rs.15,000/- for the death of 9 months child in the womb. Therefore, the claim petition is not maintainable and Tribunal has rightly rejected the claim petition.
8. Heard the learned counsel for the parties and perused the records.
9. It is not in dispute that on 9.9.2020, the claimant sustained injuries and his wife, Smt.Bhagyamma, who was 9 months pregnant died in 7 the road traffic accident due to rash and negligent driving of the offending vehicle by its driver.
In earlier claim petitions i.e., MVC 7242/2010 and 7243/2010, the claim is only in respect of death of his wife and injuries sustained by him. There was no claim for death of fetus. This court in the case of Shanthaveerappa and another (supra), has awarded compensation of Rs.2,00,000/- for a stillborn baby.
Therefore considering the materials available on record and the judgment of the this Court in the case of Shanthaveerappa and another (supra), the claimant is entitled for compensation of Rs.2,00,000/- for the death of 9 months fetus in the womb of the deceased.
Since, the Tribunal had already granted a sum of Rs.15,000/- for the death of 9 months child in the womb in the earlier claim petitions filed by the claimant, after deducting the same, the claimant is 8 entitled for compensation of Rs.1,85,000/- (Rs.2,00,000 - Rs.15,000) along with interest.
The Insurance Company is directed to deposit the compensation amount along with interest at 6% p.a. within a period of four weeks from the date of receipt of copy of this judgment.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeal is allowed-in-part.
Sd/-
JUDGE DM