Karnataka High Court
Smt. Pratima W/O. Madivalappa Naikar vs Mr. Thalkin Ahamed B.A. S/O. B.H.Ameed ... on 25 July, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No.101145/2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.101145 OF 2021 (MV)
BETWEEN:
1. SMT. PRATIMA W/O. MADIVALAPPA NAIKAR,
AGE: 30 YEARS, OCC: HOUSEHOLD, R/O: MUMMIGATTI,
TQ. AND DIST: DHARAWAD.
2. KAVERI D/O. MADIVALAPPA NAIKAR,
AGE: 9 YEARS, OCC: STUDENT, R/O: MUMMIGATTI,
TQ. AND DIST: DHARAWAD.
3. KARTHIKA S/O. MADIVALAPPA NAIKAR,
AGE: 8 YEARS, OCC: STUDENT, R/O: MUMMIGATTI,
TQ. AND DIST: DHARAWAD.
4. KEERTHI D/O. MADIVALAPPA NAIKAR,
AGE: 4 YEARS, OCC: NIL, R/O: MUMMIGATTI,
TQ. AND DIST. DHARAWAD.
NOTE: APPELLANT NO.2 AND 4 ARE MINORS
Digitally signed
by VINAYAKA B V HENCE THEY ARE R/BY THEIR NATURAL
Location: HIGH GUARDIAN I.E. MOTHER APPELLANT NO.1
COURT OF
KARNATAKA
5. KALLAPPA NINGAPPA NAIKAR,
AGE: 77 YEARS, OCC: NIL, R/O: MUMMIGATTI,
TQ. AND DIST. DHARAWAD.
6. IRAVVA W/O. KALLAPPA NAIKAR,
AGE: 72 YEARS, OCC: NIL, R/O: MUMMIGATTI,
TQ. AND DIST. DHARAWAD.
- APPELLANTS
(BY SRI B.S. SANGATI, ADVOCATE)
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MFA No.101145/2021
AND:
1. MR. THALKIN AHAMED B.A.
S/O. B.H. AMEED AHAMED,
AGE: MAJOR, OCC: BUSINESS,
R/O: EAST-WEST TOURIST CORPORATION,
MUSLIM HOSTEL COMPLEX,
SIR.M.V. ROAD, SHIMOGA-1.
2. THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO.LTD.,
ENKAY COMPLEX, KESHWAPUR
HUBBALLI.
POLICY NO.473100/31/2018/6424.
3. THE DIVISIONAL MANAGER,
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
HUBBALLI.
POLICY NO.OG-17-1529-1803-00000646.
- RESPONDENTS
(BY SRI R.R. MANE, AGA FOR R2;
SRI S.K. KAYAKAMATH, ADVOCATE FOR R3;
NOTICE TO R1 IS SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988, AGAINST
THE JUDGMENT AND AWARD DATED 31.05.2021 PASSED IN
M.V.C. NO.341/2018 ON THE FILE OF THE IV ADDITIONAL
SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT
CLAIMS TRIBUNAL, DHARWAD, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION AND ETC.,
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN
HEARD AND RESERVED ON 22.07.2024 AND COMING ON FOR
PRONOUNCEMENT, THIS DAY, BASAVARAJA J., DELIVERED/
PRONOUNCED THE FOLLOWING:
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MFA No.101145/2021
CORAM : HON'BLE JUSTICE S G PANDIT
AND
HON'BLE JUSTICE G BASAVARAJA
CAV JUDGMENT
(PER: HON'BLE JUSTICE G BASAVARAJA) Appellants/ claimants have preferred this appeal against the judgment and award dated 31.05.2021 passed by the learned IV Addl. Senior Civil Judge & Addl. M.A.C.T., Dharwad (for short 'Tribunal') in M.V.C. No. 341/2018. The parties are referred to their ranks as they stood before the Tribunal.
2. Brief facts leading to this appeal are that the appellants/ claimants have filed claim petition u/S 163-A of Motor Vehicles Act seeking compensation for the death of Madivalappa Kallappa Naikar who died in the accident. It is stated that on 04.11.2017 at about 2.15 a.m. when the deceased being the driver of the lorry bearing Reg. No. KA-25-D-4125 was proceeding in the said lorry on NH-206, a bus bearing Reg. No. KA-20-C-6937 belonging to respondent no.1 coming from the opposite direction, came in a rash and negligent manner and dashed against the lorry driver Madivalappa, near Kuppalu nursery at Chikkamagaluru due to which the said Madivalappa sustained grievous injuries all over the body and succumbed to -4- MFA No.101145/2021 the same while on treatment at KLE Hospital, Belagavi. The said accident and the death of Madivalappa were the result of rash and negligent driving of the bus by its driver. Further it is stated that petitioner no.1 is the wife, petitioner nos.2 to 4 are children, petitioner nos.4 and 6 are the parents of the deceased. As the petitioners did not have independent source of income, they were wholly dependent on the income of the deceased who was the only earning member in the family. Due to his untimely death, petitioners have suffered great mental shock and agony and are confronting a huge financial crisis. The deceased who possessed a lorry, was into transport business earning Rs.40,000/- per annum. The petitioners spent Rs.3,00,000/- for treatment but could not save madivalappa. As the occurrence of the accident was the result of rash and negligent driving of the bus by its driver, petitioners filed the claim petition seeking compensation from the respondents no.1 and 2 who are the owner and insurer of the offending bus and also from the respondent no.3 who is the insurer of the lorry belonging to the deceased. On all these grounds, the claimants sought to allow the claim petition.
3. In pursuance of the notice, respondents no.2 and 3 appeared through their counsel and filed their respective -5- MFA No.101145/2021 written statements. Respondent no.1 did not turn up despite being duly served with notice and he was placed exparte.
4. Respondent no.2 in its written statement denied all the petition averments and contended that the instant petition is not maintainable u/S 163-A of M.V. Act as the deceased was himself owner of the lorry, earning Rs.40,000/- per month as the accident was result of his own fault. It is also contended that deceased Madivalappa had no valid and effective driving licence to drive the said lorry on the day of occurrence of accident. Hence, sought for dismissal of the claim petition.
5. Respondent no.3 in its written statement admitted that the lorry belonging to the deceased was covered under policy of insurance issued by it but denied the other petition averments. It is contended that the petition is not maintainable u/S 163-A of M.V. Act as the deceased was himself owner of the lorry earning Rs.40,000/- per month as the accident was the result of his own fault. Deceased Madivalappa had no valid and effective driving licence to drive the said lorry on the date of accident. On these grounds, sought to dismiss the claim petition.
6. Based on the pleadings, the tribunal has framed the following issues.
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1. Whether the petitioners prove that on 04.11.2017 at about 2.15 a.m., when the deceased Madivalappa being the driver of the Lorry bearing Reg. No. KA-25-D-4125 was proceeding in the said lorry on the NH-206, a Bus bearing Reg. No. KA-20-C-6937 belonging to the respondenet No.1 coming from the opposite direction, came in rash and negligent manner and dashed against the lorry driven by Madivalappa, near Kuppalu nursery at Chikkamangaluru due to which the said Madivalappa sustained grievous injuries all over the body and succumbed to the same while on treatment at KLE Hospital, Belagavi and same was the result of actionable negligence on the part of the bus driver?
2. Whether the respondent No.2 proves that the deceased Madivalappa had no valid and effective driving license so as to drive the said lorry as on the date of accident?
3. Whether the petitioners are entitled for the compensation? If so, to what quantum and from whom?
4. What award or order?
7. To prove the case of the petitioners, one witness was examined as PW1, 11 documents were marked as Exs.P.1 to P.11. On closure of petitioners' side evidence, one Ibrahim was examined as RW1 and two documents were marked as Exs.R.1 and R2. Having heard arguments of both the sides, the Tribunal has allowed the claim petition in part with costs and awarded compensation of Rs.50,000/- only with simple interest at the rate of 8% p.a. from the date of petition till the date of deposit. Being aggrieved by this judgment and award passed -7- MFA No.101145/2021 by the Tribunal, the appellants/ claimants have preferred this appeal for enhancement of compensation.
8. Learned counsel for the appellants would submit that the Tribunal has erred in awarding a meager compensation of Rs.50,000/- with 8% interest from the date of petition till deposit. The Tribunal has not properly awarded the compensation towards transportation of dead body, loss of estate, etc. It has not considered the loss of income. Without assigning valid reasons, the income of the deceased is not considered properly.
9. Further he would submit that the recent decision of the Hon'ble Apex Court in the case of Ram Murti and others Vs. Punjab State Electricity Board1 has held that the provisions of Sec. 140 which formed a part of Chapter 10 of the Motor Vehicles Act, 1988 were omitted by Act 32 of 2019. Simultaneously, Chapter 11 was substituted of which Section 164 provides for payment of compensation in the case of death in an amount of Rs.5 lakhs and in the case of grievous hurt of Rs. 2.5 lakhs. Accordingly, the Hon'ble Apex Court has extended the benefit of beneficial provisions which have been enacted by the Parliament and awarded compensation of Rs.5 1 Civil Appeal No. 7143/2022 (arising out of SLP (C) No. 19719/2009 dated 11.10.2022 -8- MFA No.101145/2021 lakhs. Relying on this decision, learned counsel for the appellants sought for compensation of Rs. 5 lakhs.
10. As against this, learned counsel Sri R.R. Mane, appearing for respondent no.2-insurer of the bus would submit that the Tribunal has not passed any award against respondent no.2 and the Tribunal has rightly rejected the claim against the respondent no.2 since during the course of cross examination PW1 has admitted that income of the deceased was more than Rs.20,000/- per month. Hence, the claim petition filed u/S 163-A of M.V. Act is not maintainable. The appellants have not made out any grounds to interfere with the impugned judgment and award passed by the Tribunal. On all these grounds sought for dismissal of the appeal.
11. Learned counsel Sri S.K. Kayakamath for respondent no.3-insurer of the lorry would submit that the claim petition filed by the claimants is not maintainable in law as the income of the deceased is more than Rs.40,000/- per annum. Further he would submit that the accident occurred due to sole negligence on the part of the deceased. Hence, legal representatives of the deceased cannot seek compensation against this respondent. He would fairly submit that as per the policy of insurance pertaining to the lorry bearing Reg. No. KA- -9- MFA No.101145/2021 25-D-4125, it was insured with the respondent no.3 and the owner has paid an amount of Rs.100/- towards P.A. Cover for owner-cum-driver for Rs. 2 lakhs. Accordingly, the insurance company is ready to pay an amount of Rs. 2 lakhs only. Learned counsel relied on the decision of the Hon'ble Apex Court in the case of Oriental Insurance Co. Ltd., V. Hansrajbhai V. Kodala and others2 and Deepal Girishbhai Soni and Others Vs. United India Insurance Co. Ltd., Baroda3. On all these grounds sought for dismissal of the appeal.
12. Having heard the arguments of both sides and on perusal of original records and appeal papers, the following points would arise for our consideration.
1) Whether the Tribunal is justified in framing issue no.1 to prove rash and negligent act on the part of the driver of the bus bearing Reg. No. KA-2--C-6937?
2) Whether the Tribunal is justified in awarding compensation of Rs.50,000/- only?
3) Whether the appellants/claimants are entitled for compensation of Rs.5 lakhs as per the decision of Hon'ble Apex Court rendered in Civil Appeal No. 743/2022 in Ram Murti and others Vs. Punjab State Electricity Board dated 11.10.2022?
4) What order? 2 (2001) 5 SCC 175 3 (2004) 5 scc 385 - 10 - MFA No.101145/2021
13. Our findings to the above points are as under:
Point No.1 : In the negative
Point No.2 : In the negative
Point No.3 : In the affirmative
Point No.4 : As per final order for the following:
REASONS
14. Point No. 1: We have examined the materials placed before the Court. The petitioners-claimants have filed petition u/S 163-A of M.V. Act seeking compensation for the death of Madivalappa who died in the accident. When the petitioners have filed application u/S 163-A of M.V. Act, the Tribunal need not frame the issue as to the rash and negligent act on the part of the driver of the bus. Sec. 163-A of M.V. Act is a special provision as to the payment of compensation on structured formula basis. Sub Section (2) of Sec. 163-A of M.V. Act, 1988 contemplates that in any claim for compensation under Sub Section (2) of Sec. 163-A of M.V. Act, the claimants shall not be required to plead or establish that the death or permanent disablement in respect of which claim has been made was due to wrongful act or negligence or default of the owner of the vehicle or vehicles concerned or of any other person.
15. The Tribunal has ignored the provision of sub Section (2) of Sec. 163-A of M.V. Act, 1988 and frame the issue to prove
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the rash and negligent act on the part of the driver of the bus. A finding is also rendered by the Tribunal as 'negative' that the petitioners have failed to prove rash and negligent act on the part of the driver of the bus which is not sustainable under law. Both parties have not disputed the use and involvement of the lorry bearing reg. no. KA-25-D-4125 and the bus bearing Reg. No. KA-20-C-6937. In view of Sec. 163-A of M.V. Act, use and involvement of vehicles is sufficient to claim compensation as indicated in the second schedule by the claimants. Accordingly, the Tribunal is not justified in framing issue no.1. Hence, we answer issue no.1 in the negative.
16. Point Nos.2 and 3: The petitioners have averred in the petition that deceased Madivalappa was self employed, he possessed a lorry in his name, doing transport business and earning Rs.40,000/- p.a. To substantiate the same, PW1-Smt. Pramila, wife of the deceased, has stated the same in her evidence. During the course of cross examination of PW1 she has stated that her husband was earning about Rs.20,000/- per month. On this admission made by PW1 both the counsel appearing on behalf of respondents no.2 and 3 vehemently submitted that the petition is not maintainable in law as the income of the deceased was more than Rs.40,000/- per annum. Except the stray admission of PW1 absolutely there is no legal
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MFA No.101145/2021evidence before this Court to come to the conclusion that income of the deceased was more than Rs.40,000/- per annum as contended by the respondents no.2 and 3. Therefore, the arguments advanced on behalf of respondents no.2 and 3 cannot be accepted. Respondent No.3-insurer has not preferred any appeal against the award passed by the Tribunal awarding compensation of Rs.50,000/- u/S 140 of M.V. Act. Hence, respondent no.3 is liable to pay an amount of Rs.50,000/- with simple interest at the rate of 8% p.a. from the date of claim petition till depositing the amount as awarded by the Tribunal.
17. Ex.R.2-insurance policy of the respondent no.3 pertaining to vehicle bearing Reg. No. KA-25-D-4125 reveals that the policy was in force at the time of accident. The owner of vehicle has paid an amount of Rs.15,365/- towards basic third party liability; Rs.100/- P.A. Cover for owner cum driver-SI- Rs.2,00,000/-; Rs.100/- towards LL For Operation/ Maintenance For 2 persons and total premium of Rs.15,565/-; the final premium of Rs.25,911/- is paid by the owner of the vehicle. Though the insurance company is liable to pay an amount of Rs.2 lakhs for the death of the owner of the vehicle under contractual liability, the insurance company has not paid the amount till this date. Fortunately, before this Court learned
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MFA No.101145/2021counsel for the insurer has fairly submitted that since owner has paid an amount of Rs.100/- premium in this regard, the insurance company is ready to pay an amount of Rs. 2 lakhs to the petitioners as the policy covered the risk of the owner for Rs.2 lakhs.
18. Considering the policy-Ex.R.2 and submission of the learned counsel for the insurer it is just and proper to award compensation of Rs.2 lakhs as per the policy and Rs.50,000/- already awarded by the Tribunal which is not challenged by the respondent no.3. In total, a sum of Rs.2,50,000/- shall be payable by the respondent no.3 with interest at 8% p.a.
19. With regard to the decision relied by the learned counsel for the appellant in Ram Murti (supra) is concerned, the Hon'ble Apex Court has held that the provisions of Sec. 140 which formed a part of Chapter 10 of the Motor Vehicles Act, 1988 were omitted by Act 32 of 2019. Simultaneously, Chapter 11 was substituted of which Section 164 provides for payment of compensation in the case of death in the amount of Rs.5 lakhs and in the case of grievous hurt of Rs. 2.5 lakhs. The Hon'ble Apex Court has clearly held that they are inclined to give to the appellants the benefit of beneficial provision which have been enacted by the Parliament. Hence in modification of
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MFA No.101145/2021the order of the High Court, the Hon'ble Apex Court directed that appellants shall be entitled to an amount of Rs.5 lakhs as compensation.
20. Though the accident in question pertaining to the above case is prior to substitution of Sec. 164 of Chapter 11 of the M.V. Act, 2019, the Hon'ble Apex Court has granted compensation of Rs. 5 lakhs under Section 164 of M.V. Act. Relying on this judgment we are of the considered view that the appellants are entitled for compensation of Rs. 5 lakhs. Accordingly, we answer point no.2 in the negative and point no.3 in the affirmative.
21. In the peculiar facts and circumstances of the case, considering the liability of respondent no.3 as per the policy of insurance-Ex.R.2 and the award passed by the Tribunal, respondent no.3 is liable to pay compensation of Rs.2,50,000/-. So also, considering the facts and circumstances of the case and keeping in mind the old provision of Sub Section (2) of Sec. 163-A of M.V. Act and Sec. 164 of amended Act, 2019 and the decision of Hon'ble Apex Court in Ram Murti (supra), we deem it appropriate to direct the respondent no.2 to pay the remaining amount of Rs.2,50,000/- with interest at 8% p.a.
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MFA No.101145/2021
23. For the aforesaid reasons and discussions, we proceed to pass the following:
ORDER Appeal is allowed;
The judgment and award dated 31.05.2021 passed by the learned IV Addl. Senior Civil Judge & Addl. M.A.C.T., Dharwad M.V.C. No. 341/2018, is modified holding that appellants are entitled for compensation of Rs.5 lakhs including Rs.50,000/- awarded by the Tribunal with interest at 8% p.a. from the date of petition till realization.
Respondents no.2 and 3 are directed to deposit a sum of Rs.2,50,000/- each with interest at 8% p.a. from the date of petition till realization. The said sum shall be deposited before the Tribunal within 60 days from the date of award. After depositing the amount the Tribunal shall disburse the same to the appellants in accordance with law.
Draw award accordingly.
Send a copy of this judgment to the tribunal along with original records, forthwith.
Sd/-
JUDGE Sd/-
JUDGE bvv