Narayanaswamy vs Venkatesh B
2021 Latest Caselaw 1502 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 01ST DAY OF FEBRUARY, 2021

                         PRESENT

            THE HON'BLE MRS. JUSTICE S.SUJATHA

                            AND

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM


               MFA.NO.1510 OF 2017(MV-D)

BETWEEN:

1 . NARAYANASWAMY
S/O LATE MUNASWAMY NAIDU
AGED ABOUT 58 YEARS

2 . SMT. PREMA
W/O NARAYANA SWAMY NAIDU
AGED ABOUT 52 YEARS

BOTH ARE RESIDING AT NO.4
11TH CROSS, 2ND MAIN
BHUVANESHWARI NAGAR
K.E.B ROAD, BSK
3RD STAGE, BANGALORE

                                            ....APPELLANTS

(BY SRI. SHANKARA NAIDU .S, ADVOCATE)

AND:

1 . VENKATESH .B
                              2


S/O LATE BUYYAPPA NAIDU
AGED ABOUT 48 YEARS
RESIDING AT NO.34
BEHIND SRINIVASA KALYANA MANDAPAM
BSK 3RD STAGE
ITTUMADUGU
BANGALORE

2 . THE NATIONAL INSURANCE CO. LTD.
REP. BY ITS BRANCH MANAGER
MANDOVI MOTORS PVT. LTD.
JP NAGAR, BANGALORE

                                              ....RESPONDENTS

(BY SRI. B.C. THIPPESWAMY, ADVOCATE FOR R1
 SRI. B.C. SEETHARAMA RAO, ADVOCATE FOR R2)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 15.11.2016 PASSED
IN MVC NO.6502/2010 ON THE FILE OF THE 3RD ADDITIONAL
SENIOR CIVIL JUDGE, COURT OF SMALL CAUSES, BENGALURU,
DISMISSING THE CLAIM PETITION FOR COMPENSATION.


     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 13.11.2020, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT   THIS   DAY,   SACHIN   SHANKAR     MAGADUM    J.,
DELIVERED THE FOLLOWING:
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                                JUDGMENT

The top noted appeal is directed against the impugned

judgment and award dated 15.11.2016 passed by the III

Additional Senior Civil Judge and MACT, Bengaluru, in

MVC.Nos.6502/2010 in dismissing the claim petition filed by

the claimants seeking compensation for the death of one

Chandrashekar.

2. For the sake of convenience, the parties are

referred to as per their rank before the Tribunal.

3. The brief facts of the case are as under:

The claimants in MVC.No.6502/2010 filed a claim petition

contending that on 16.06.2008 their son Chandrashekar along

with Kumar and other inmates were proceeding in a Maruthi

Van bearing Regn.No.KA-05-MD-3621 from Kanipakam to

Thimmasanapalli village at Vellore District to attend a

marriage function. At about 1.00 a.m, when the vehicle

reached near Kumar's land on Thangala-AN Palya Main Road,

the deceased Chandrashekhar, who was driving the said

vehicle lost control over the vehicle, as a result of which the

vehicle met with an accident. Due to the impact, the said

Chandrashekar and another inmate namely Parmeshwari died

on the spot. The claimants contended that the deceased was

hardly aged 27 years and was working as a Site Supervisor at

M/s.SLV Builders and Developers and was drawing salary of

Rs.2,10,000/- per annum. Hence, they filed the claim petition

claiming compensation of Rs.21,40,000/- contending that they

were fully dependent on the income of the deceased and due

to his unexpected death, they have suffered a lot and lost

their bread earner.

The claim petition was strongly resisted by the Insurance

Company.

The Tribunal having examined the oral and documentary

evidence on record has proceeded to restrict the income of the

deceased at Rs.40,000/- and has thereafter, proceeded to

dismiss the claim petition on the ground that the deceased

Chandrashekar was a tort-feaser and as such the claimants

are not entitled for any compensation. Being aggrieved by

the same, the claimants have preferred this appeal.

5. The learned counsel appearing for the claimants

contended that the Tribunal has erred in coming to the

conclusion that the deceased Chandrashekar was the tort-

feaser and the accident in question occurred due to his rash

and negligent driving. The Tribunal erred in not taking into

consideration the observations made in the decision reported

in 2010(2) AWR 512 wherein it is observed that under Section

163-A of MV Act, there is no limit that the income should not

exceed more than Rs.40,000/- per year and the schedule is

only a guidance to arrive at a multiplier. Further, the Tribunal

has erred in not taking into consideration the decision

rendered in 2005 ACJ 543 wherein it is observed that the

Tribunal has got inherent power to grant compensation by

applying current provision of law which is applicable for

coming to a conclusion and that in the aforesaid case though

the claim was made under Section 166 of M.V. Act, the

compensation was granted under Section 163A of M.V. Act.

Further, the Tribunal has failed to consider that under Section

163-A, the claimants need not prove the rash and negligent

act of the driver and that the evidence of P.W.5 clearly shows

that the accident in question occurred beyond the control of

the deceased. Therefore, the learned counsel contends that

the appeal be allowed setting aside the impugned judgment

and award and award compensation as prayed.

6. We have heard the learned counsel appearing for

the claimants and counsel appearing for Insurance Company.

7. The Tribunal has proceeded to dismiss the claim

petition by holding that the deceased himself was driving the

vehicle and as such the legal representatives of the deceased

cannot maintain a claim petition under Section 163A of the

M.V.Act. The Hon'ble Apex Court in Ningamma and another

.vs. United India Insurance Company (2009) 13 SCC

710 has held that absence of any specific claim under Section

166 in pleadings would not be a impediment for the Tribunal

to examine the claimant's rights under Section 166 of the M.V.

Act. The Hon'ble Apex Court was of the view that the

claimants could not be deprived of getting just compensation

in those cases where the claimants can make out a case under

Section 166 of the M.V.Act. The ratio laid down by the Apex

Court, as stated supra, is applicable to the case on hand.

However, the claimants have filed a claim petition contending

that deceased had an annual income of Rs.2,10,000/- per

annum. Since, the income of the deceased per annum

exceeds the prescribed slab under Section 163A of the M.V.

Act, we deem it fit to remand the matter to the Tribunal for

fresh consideration by keeping all contentions open.

8. The Apex Court in the case of Dhannalal .Vs. D.P.

Vijayvargiya and others [AIR 1996 SC 2155] having

taken judicial note of the amendment made in the year 1994

deleting sub-section(3) of Section 166 of M.V.Act, has

discussed the purpose of amendment and also the intent of

legislature to take away the vigor of legislation.

9. The protection is provided under Section 163A of

the M.V. Act to the victims whose income slab is Rs.40,000/-

per annum and that remedy is not available to the victims

whose income slab is more than Rs.40,000/-. Since the

evidence on record indicates that the income slab of the

deceased is more than Rs.40,000/-, the remedy available

under Section 163A of the M.V. Act cannot be pressed into

service.

10. The Hon'ble Apex Court in United India

Insurance Company .vs. Sunil Kumar and another (Civil

Appeal No.9694/2013) has held that when a claim is made

under Section 163A of the M.V.Act, the insurer cannot be

permitted to raise defence in regard to negligence and if

permitted would go contrary to very legislative object behind

introduction of Section 163A of the Act.

11. But, there is also no impediment to treat the same

as the claim petition under Section 166 of M.V.Act. Precisely

on this count, we deem it fit having regard to the valuable

rights of the claimants to remand the matter back to the

Tribunal to enable the claimants to seek appropriate

amendment. It would be also open for the insurer to raise all

statutory defence. If the claimants seek relief by amending

petition under Section 166 of the M.V.Act, then it goes without

saying that the claimants are required to amend the pleadings

in the claim petition and raise a plea to prove the rash and

negligence which is sine quo non for determining the claim

petition under Section 166 of the M.V.Act. After such an

amendment is carried out, the Insurance Company needs to

be given an opportunity to raise a defence available to them in

terms of the mandate of the M.V.Act.

12. With the above observations, the appeal is

allowed. The judgment and award dated 15.11.2016 passed

by the III Additional Senior Civil Judge and MACT, Bengaluru,

in MVC.No 6502/2010 is set aside and the matter is remanded

back to the Tribunal to enable the claimants to seek

appropriate remedy in accordance with law.

In the event, the claimants opt to prosecute the petition

under Section 166 of the M.V.Act, the Tribunal shall proceed to

hold an enquiry in accordance with law and thereafter decide

the claim petition.

Sd/-

JUDGE

Sd/-

JUDGE *alb/-.