Karnataka High Court

H Subbraya Bhat vs Smt Sulochana Bhat .H on 3 December, 2021

Bench: H T Prasad

                              1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 3RD DAY OF DECEMBER 2021

                            BEFORE

     THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

                 MFA No.5399 OF 2016(MV)

BETWEEN:

H.Subbraya Bhat,
S/o Upendra Bhat,
Aged about 67 years,
R/o Yeliyur Kodi,
B.M.Road, Kothathi Hobli,
Mandya Taluk,
Mandya District-571401.                   ... Appellant

(By Sri. Manje Gowda B.V., Advocate for
Sri. Chandrashekara K.A., Advocate)

AND:

1.     Smt. Sulochana Bhat H.,
       W/o H.Subbraya Bhat,
       Major in age,
       Prop.Nandini Rice Mill,
       No.151/2, B.M.Road,
       Kalenahalli Village,
       Yeliyur kodi,
       B.M. Road, Kothathi Hobli,
       Mandya Taluk,
       Mandya District-571401.

2.     Bajaj Allianz General Ins. Co,.
       No.324/1, Subbaiah Road,
       Chamaraja Mohalla,
                             2



     Mysore-5700024.
     Represented by its Manager.        ... Respondents

(By Sri. E.I.Sanmathi, Advocate for R2:
Notice to R1 is D/w V/o dated: 03.12.2021.)

       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:13.04.2016 passed
in MVC No.565/2014 on the file of the 1st Additional
Senior Civil Judge and CJM, Mandya, dismissing the claim
petition for compensation.

      This MFA, coming on for Admission, this day, this
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 13.04.2016 passed

by the Motor Accident Claims Tribunal, Mandya in MVC

No.565/2014.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 06.04.2014 at about 1.00

p.m. the deceased Gururaj Bhat was proceeding in the

Chevrolet car bearing registration No.KA-11/M-4759

from Mandya towards Tubinakere. When the car

reached near Siddaiahanakoppalu cross on the

Bengaluru-Mysuru road, a motorcycle which was going

in front without any indication started taking the

motorcycle to the left and the deceased in order to

prevent the impact had taken the car to the left and in

the process he hit the bridge by the side of the road.

As a result of the aforesaid accident, the deceased

sustained grievous injuries and succumbed to the

injuries.

3. 3. The claimants filed a petition under

Section 163-A of the Act seeking compensation for the

death of the deceased along with interest.

4. On service of summons, the respondent

Nos.1 and 2 appeared through counsel and filed

separate written statements in which the averments

made in the petition were denied. It was pleaded that

first respondent is the owner of the offending vehicle

and the second respondent is the insurer and the

policy was in force at the time of the accident. Hence,

they sought for dismissal of the petition.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimants, in order to

prove their case, examined claimant No.1 as PW-1

and another witness as PW-2 and got exhibited 7

documents namely Ex.P1 to Ex.P7. On behalf of

respondents, one witness was examined as RW-1 and

got exhibited 4 documents namely Ex.R1 to Ex.R4.

The Claims Tribunal, by the impugned judgment, inter

alia, held that the deceased died due to the rash and

negligent driving by the deceased himself. Hence,

dismissed the claim petition.

6. The learned counsel for the claimant has

contended that the claim petition has been filed by the

father of the deceased under Section 163-A of the Act.

In view of the law laid down by the Hon'ble Apex

Court in the case of UNITED INDIA INSURANCE

COMPANY LTD. -V- SUNIL KUMAR AND ANOTHER

reported in AIR 2017 SC 5710 no defence is

available for the Insurance Company to plead the

neglingence of the deceased. Therefore, the claim

petition dismissed by the Tribunal is contrary to the

judgment of the Hon'ble Apex Court in the case of

SUNIL KUMAR (supra). Hence, he prays for allowing

the appeal.

7. Per contra, learned counsel for the Insurance

Company has contended that the accident has occrued

due to the neglingece of the deceased himself, there is

no other vehicle involved. Since the deceased stepped

into the shoes of the owner of the offending vehicle in

view of the law laid down by the Hon'ble Apex Court in

the case of RAM KHILADI vs. UNITED INDIA

INSURANCE COMPANY LTD. reported in 2020 Part

II SCC 550, Insurance Company is not liable to pay

the compensation. Therefore, the Tribunal has rightly

dismissed the claim petition and the FIR and charge

sheet have been filed against the deceased himself.

Since abetted charge sheet is filed, he himself is

negligent in causing the accident. He also relied on

the judgment of the Hon'ble Apex Court in the case of

NINGAMMA vs. UNITED INDIA INSURANCE

COMPANY LIMITED (Civil Appeal No.3538/2009

- SLP(C) 24236/2008 disposed of on

13.05.2009). Hence, he sought for dismissal of the

appeal.

8. Heard the learned counsel for the parties.

Perused the judgment and award and the original

records.

9. It is not in dispute that Gururaj Bhat died in a

road traffic accident occurred on 06.04.2014 involving

the car bearing registration No.KA-11/M-4769. The

claimant is the father of the deceased and he filed the

claim petition under Section163-A of the Act.

For better understanding, Section 163-A is

extracted hereinbelow:

           "1[163A.    Special     provisions   as    to
     payment    of    compensation     on   structured

formula basis.-- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.

Explanation.--For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).

(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or

permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.

(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. ]"

10. The Hon'ble Apex Court in the case of

SUNIL KUMAR (supra) has held that in a proceeding

under Section 163-A of the Act, it is not open for the

insurer to raise any defence of negligence on the part

of the victim and also in the case of

CHANDRAKANTA TIWARI vs. NEW INDIA

ASSURANCE COMPANY LIMITED reported in

(2020) 7 SCC 386 it is held that as cause of action

as per Section 163-A is use of the motorcycle, cause

of action alone which need to be established without

any requirement to prove fault on the part of the

driver, whether it be the owner or any other person.