Smt Kemapamma @ Devamma vs Sri M R Mruthunjaya
2021 Latest Caselaw 5415 Kant

      IN THE HIGH COURT OF KARNATAKA, BENGALURU

       DATED THIS THE 3RD DAY OF DECEMBER, 2021

                       BEFORE

THE HON'BLE MR.JUSTICE SACHIN SHANKAR MAGADUM

MISCELLANEOUS FIRST APPEAL NO.3653 OF 2013 (MV)


BETWEEN :

1. SMT. KEMPAMMA @ DEVAMMA,
W/O. YELAVAIAH
AGED 42 YEARS

2. SRI. YELAVAIAH @ ALAVAIAH
S/O. LATE SRIKANTAIAH
AGED ABOUT 46 YEARS

3. SMT. THIRUMALAMMA
W/O. MANJUNATH
D/O. YELAVAIAH
AGED ABOUT 25 YEARS,

ALL ARE RESIDING AT :
HANUMAPURA VILLAGE
KALYA POST, KASABA HOBLI
MAGADI TALUK
RAMANAGARA DISTRICT-562 120.
                                        ... APPELLANTS

(BY SMT. BHUSHANI KUMAR, ADVOCATE)


AND

1. SRI. M.R. MRUTHUNJAYA
S/O. RUDRAMURTHY
HINDU, MAJOR
R/AT RUDRESHWARA NILAYA
KEB LAYOUT, BHATWADI,
TUMKUR - 572 101.
                             2

2. THE BRANCH MANAGER
THE NEW INDIA ASSURANCE CO.LTD.
HUB NO.9/2, MAHALAKSHMI CHAMBERS
2ND FLOOR, M.G. ROAD,
BANGALORE - 560 001.
                                       ... RESPONDENTS

(BY SRI. A.R. LAKSHMINARAYANA, ADV. FOR R2, R1 SERVED)


     THIS MFA FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 29.11.2012
PASSED IN MVC NO.5316/2011 ON THE FILE OF THE JUDGE,
COURT OF SMALL CAUSES & 26TH ACMM, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THIS MFA COMING ON FOR ADMISSION THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING, THIS DAY THE
COURT DELIVERED THE FOLLOWING:


                      JUDGMENT

This miscellaneous first appeal is filed by the

claimants questioning the contributory negligence

fastened on the deceased by the Tribunal and also

challenging the quantum on the ground that as per the

schedule, the Tribunal ought to have deduct 1/3rd of the

income and not 50%.

2. The appellants filed a claim petition under

Section 163-A of Motor Vehicles Act, 1988 for having lost

one Jagadeesh H.A. in a road traffic accident dated

02.08.2011 by contending that the driver of the offending

bus came in a rash and negligent manner from the

opposite direction and dashed against the bike and on

account of the impact, Jagadeesh H.A. succumbed to the

injuries on the spot.

3. The Tribunal has assessed the income of the

deceased at Rs.3,300/- and awarded a compensation of

Rs.3,56,400/-. While doing so, the Tribunal has

deducted 50% of the income.

4. On re-appreciation of oral and documentary

evidence, the short points that would arise for

consideration in the present case on hand is:

"1. Whether the Tribunal was justified in examining the contributory negligence when admittedly the petition is filed under Section 163-A of M.V. Act?

2. Whether the Tribunal was justified in deducting 50% of the income of the deceased, which

is contrary to Schedule-II annexed to Section 163-A of M.V. Act?"

5. It is not in dispute that the present claim

petition is filed under Section 163-A of M.V. Act. It is

obvious that the provisions similar to sub-section (4) of

Section 140 of M.V. Act is absent in Section 163-A of

M.V. Act. Therefore, the scheme of Section 163-A does

not permit the Insurance Company to put up a defence

in regard to negligence and any such interpretation

would go contrary to the very legislative object behind

introduction of Section 163-A of M.V. Act. Section 163-A

relieves the claimant from proving the negligence on the

part of the offending vehicle.

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

Ramkhiladi & Another vs. The United India

Insurance Company & Another reported in (2020) 1

CTC 443, reiterating the principles and scope of enquiry

under section 163-A of the Act has held that there is no

need for the claimant to plead or establish negligence.

Therefore, the Tribunal was not justified in examining

the issue relating to negligence. Therefore, the said

finding is perverse and contrary to the scope of Section

163-A of M.V. Act, 1988. Therefore, the finding recorded

by the Tribunal in fastening 50% of the negligence on the

deceased is set aside.

7. As per Schedule-II to Section 163-A of M.V.

Act, while computing the compensation under the head

'Loss of dependency', 1/3rd has to be deducted towards

personal expenditure. In the present case on hand, the

Tribunal has deducted 50%. Therefore, the said finding

is perverse and contrary to the schedule. Hence, I

proceed to assess the income of the deceased at

Rs.3,300/- and by deducting 1/3rd, the income of the

deceased is taken at Rs.2,200/- and by applying

multiplier of '17', the compensation under the head 'loss

of dependency' works out to Rs.4,48,800/-

(Rs.2,200x12x17). The compensation awarded under the

'conventional heads' is undisturbed. Therefore, the total

compensation re-determined by this court comes to

Rs.4,53,300/- as against Rs.1,80,450/- awarded by the

Tribunal. Hence, I pass the following :

ORDER

Appeal is allowed in part.

The Judgment and award dated 29.11.2012 passed

by the Judge, Court of Small Causes & XXVI ACMM,

Bangalore (SCCH-09), in MVC No.5316/2011, is

modified.

Appellants are entitled for the enhanced

compensation of Rs.2,72,850/- with interest at 6% per

annum.

Sd/-

JUDGE

snc