The Divisional Manager Shriram ... vs Annapoorna W/O Shivayogi Holi And ...
2021 Latest Caselaw 6239 Kant

                          1




         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 16TH DAY OF DECEMBER, 2021

                      BEFORE

        THE HON'BLE MR.JUSTICE M.G.S.KAMAL

              MFA No.30505/2013 (MV)
                       C/W
              MFA No.30504/2013 (MV)

MFA 30505/2013

BETWEEN

THE DIVISIONAL MANAGER
SHRIRAM GEN. INS. CO. LTD.,
100003-E-8, RIICO INDUSTRIAL AREA
SITAPUR, JAIPUR (RAJASTHAN)
NOW REPTD. BY ITS AUTHORIZED
REPRESENTATIVE MR. ULLAS KARANTH
                                          ...APPELLANT

(BY SMT. BHADRASHETTY SANGEETA C, ADVOCATE)

AND

1.     ANNAPOORNA W/O SHIVAYOGI HOLI
       AGE: 37 YEARS, OCC: HOUSE HOLD WORK,
       R/O NEELAGUND, TQ. BADAMI NOW
       R/AT BASAVANA BAGEWADI, DISI.BIJAPUR

2.     SHIVAYOGI S/O VIRABHADRAPPA HOLI
       AGE: 42 YEARS, OCC: AGRICULTURE,
       R/O NEELAGUND, TQ. BADAMI,
       NOW R/AT BASAVANA BAGEWADI,
                          2




      DIST. BIJAPUR

3.    DHARMARAJ S/O MALLAPPA PATIL
      AGE: MAJOR, OCC: BUSINESS,
      R/O 7-2982, BANK COLONY,
      MOMINPURA, (B), GULBARGA
                                     ...RESPONDENTS

(BY SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE FOR
R1 & R2; R3 SERVED)

      THIS APPEAL IS FILED UNDER SECTION 173(1) OF
M. V. ACT PRAYING TO ALLOW THIS APPEAL BY SETTING
ASIDE THE IMPUGNED COMMON JUDGMENT AND AWARD
PASSED BY THE SENIOR CIVIL JUDGE AND MEMBER MACT
NO.IX, BASAVANA BAGEWADI IN MVC NO.168/2010
DATED 26.05.2012, IN THE INTEREST OF JUSTICE AND
EQUITY.

MFA 30504/2013

BETWEEN

THE DIVISIONAL MANAGER
SHRIRAM GEN.INS.CO.LTD.
100003-E-8, RIICO INDUSTRIAL AREA
SITAPUR, JAIPUR (RAJASTHAN)
NOW REPTD. BY ITS AUTHORIZED
REPRESENTATIVE MR. ULLAS KARANTH
                                        ...APPELLANT

(BY SMT. BHADRASHETTY SANGEETA C., ADVOCATE)

AND

1.    SUMMAWWA W/O ASHOK
      DODDALINGAPPANAVAR
      AGE: 38 YEARS, OCC: HOUSE HOLD WORK,
      R/O NEELAGUND, TQ. BADAMI
                             3




     NOW R/AT BASAVANA BAGEWADI,
     DISI.BIJAPUR

2.   ASHOK S/O CHANNABASAPPA
     DODDLINGPPANAWAR
     AGE: 43 YEARS, OCC: AGRICULTURE,
     R/O NEELAGUND, TQ. BADAMI,
     NOW R/AT BASAVANA BAGEWADI,
     DIST. BIJAPUR
3.   DHARMARAJ S/O MALLAPPA PATIL
     AGE: MAJOR, OCC: BUSINESS,
     R/O 7-2982, BANK COLONY,
     MOMINPURA (B), GULBARGA
                                   ...RESPONDENTS

(BY SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE FOR
R1 & R2; R3 SERVED)

      THIS APPEAL IS FILED UNDER SECTION 173(1) OF
M. V. ACT PRAYING TO ALLOW THIS APPEAL BY SETTING
ASIDE THE IMPUGNED COMMON JUDGMENT AND AWARD
PASSED BY THE SENIOR CIVIL JUDGE AND MEMBER MACT
NO.IX, BASAVANA BAGEWADI IN MVC NO.169/2010
DATED 26.05.2012, IN THE INTEREST OF JUSTICE AND
EQUITY.

     THESE APPEALS COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-

                      JUDGMENT

These appeals are filed by the appellants - insurance

company under Section 173(1) of the Motor Vehicles Act,

1988 (for short 'M.V.Act') aggrieved by the judgment and

order dated 26.05.2012 passed in MVC No.1971/2010

(old) 168/2010 (new) and MVC No.1971/2010 (old)

169/2010 (new) on the file of Senior Civil Judge and

Member MACT-IX, Basavana Bagewadi.

2. Brief facts leading up to filing of the present

appeals are that, on 21.07.2010, at about 00.20 hours,

deceased Kiran and Praveen were proceeding on a

motorcycle bearing registration No.KA-29/Q-2623 from

Mudhol to Neelagund. When they came near the land of

one Veerakth Math on Bagalkot road, a lorry bearing

registration No.KA-32/A-2213 belonging to respondent

No.1 (henceforth referred to as 'offending vehicle') was

parked on the road without any signal or indicators and the

aforesaid Kiran and Praveen without noticing the said

parked lorry, dashed it from behind and sustained grievous

injuries and succumbed to the same.

3. Thereupon, the claim petitions under Section

163-A of the M. V. Act were filed by the claimants seeking

compensation of Rs.7,70,000/- each on the premise that

the death had caused on account of the accident, which

occurred due to parking of the lorry belonging to

respondent No.1 in a negligent manner. That the

offending lorry belonged to respondent No.1 and insured

with respondent No.2 and therefore, they are jointly and

severally liable to pay the compensation.

4. Upon service of notice, respondent No.1 filed

statement of objections denying any negligent on the part

of the driver of the lorry. It was contended that the lorry

was parked on the extreme left side of the road by

following the traffic rules. That the accident had occurred

on account of rash and negligent riding of the motorcycle

by its rider. That the lorry in any case was insured with

respondent No.2 - insurance company, therefore, the

liability, if any, would be fastened on the respondent No.2.

Hence, sought for dismissal of the claim petitions as

against him.

5. Respondent No.2 - insurance company filed

statement of objections denying the date, time, place and

age of the deceased. It was contended that the rider of

the motorcycle was negligent in riding the same, who has

dashed the parked lorry from behind. It was contended

that the driver of the lorry was not holding valid and

effective driving licence. Hence, sought for dismissal of

the claim petitions.

6. The Tribunal based on the pleading of the

parties, framed issues and recorded evidence. One

Annapurna, Summawwa and Sangappa have been

examined as PWs.1 to 3 and 11 documents have been

marked as Exs.P1 to P11. No witness or material evidence

have been marked on behalf of the respondents.

7. The Tribunal on appreciation of the evidence,

held that the accident in question had occurred involving

motorcycle and the lorry, resulting in the death of the

deceased. Consequently, held that the claimants are

entitled for total compensation of Rs.3,88,500/- in each

case with interest at 6% per annum. Aggrieved by the

same, the insurance company is before this Court by way

of present appeals.

8. It is brought to the notice of this Court that

earlier the claimants had filed appeals against the

aforesaid judgment and order seeking enhancement of

compensation in MFA Nos.31593/2012 and 31594/2012,

which have been dismissed by the coordinate Bench of this

Court by its separate judgment and order dated

11.02.2013 and 12.02.2013 respectively.

9. The learned counsel for the appellant -

insurance company reiterating the grounds in the appeal

memorandum submits that the accident in question had

occurred on account of rash and negligent riding of the

motorcycle by the deceased and that the charge sheet has

been filed against the deceased. Therefore, she submits

that the Tribunal has erred in fastening the liability on the

insurance company.

10. On the other hand, the learned counsel for the

claimants submits that since the claim petitions have been

filed under Section 163-A of the M. V. Act, the question of

negligence or adjudication thereon does not arise. He

relied upon the judgment of the Apex Court in the case of

United India Insurance Co. vs. Sunil Kumar and Anr.

reported in (2014) 1 SCC 680.

11. Heard the learned counsel for the parties.

12. Having heard the learned counsel for the

parties, the only question that arises for consideration is:

"Whether the insurance company has made out any ground seeking for interference in the judgment and award passed by the Tribunal?"

13. The accident in question resulting in the death

of the deceased namely, Kiran and Praveen is not in

dispute. The claim petitions were filed by the claimants

under Section 163-A of the M. V . Act, which provides for

payment of compensation in a structural formula. There is

no issue required to be disputed with regard to the

negligence. The defence of negligence is not available to

the insurance company. In that view of the matter, the

said ground does not warrant any consideration. The Apex

Court in the case of United India Insurance Co., (Supra)

at paragraph No.8 has held as under:

"8. From the above discussion, it is clear that grant of compensation under Section 163- A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by Section 163A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the Insurer based on the negligence of the claimant as contemplated by Section 140(4), to permit such defence to be introduced by the Insurer and/or to understand the provisions of Section 163A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163A of the Act, namely, final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time. In fact, to understand Section 163A of the Act to permit the Insurer to raise the defence of negligence

would be to bring a proceeding under Section 163A of the Act at par with the proceeding under Section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention."

14. In the light of the aforesaid facts and

circumstances of the case and in view of the law laid down

by the Apex Court in the aforesaid judgment, nothing

survive for consideration in the present appeals. Hence,

the point raised above is answered accordingly.

15. In the result, the appeals are dismissed.

The amount in deposit be transmitted to the

concerned Tribunal.

Sd/-

JUDGE

Srt