Karnataka High Court

Smt. Lakshmi vs Sri Gopal on 4 January, 2021

Author: Alok Aradhe Srishananda

                          1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4th DAY OF JANUARY 2021

                       PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                         AND

        THE HON'BLE MR. JUSTICE V. SRISHANANDA
             M. F. A. No. 8455/2014 (MV)
                          C/W.
               M.F.A NO.594/2015 (MV)

IN MFA No.8455/2014 (MV)
BETWEEN:


SMT. LAKSHMI
W/O LATE H.B PRABHU
AGED ABOUT 27 YEARS
R/AT HANUMANTHAPURA VILLAGE
ATAGOORU HOBLI
MADDUR TALUK
MANDYA DISTRICT

PRESENTLY R/AT
KEMPREGOWDANA DODDI
KASABA HOBLI
RAMANAGARA TALUK AND DIST.             ..APPELLANT
(BY SRI RAJU S, ADV.)

AND :


1.     SRI. GOPAL
       S/O LATE NAGEGOWDA
       AGED BY MAJOR
       R/AT NO.22, GOPASANDRA
                         2


     KANAKAPURA TALUK
     RAMANAGAR DISTRICT
     (OWNER OF LORRY BEARING NO
     KA-42/469)

2.   THE ORIENTAL INSURANCE COL. LTD
     NO.22, V.C PLAZA
     DR. DVG ROAD
     VASAVANAGUDI
     BANGALORE - 560004.

3.   SRI VENKATARAJU
     S/O VENKATESHAPPA
     AGED BY MAJOR
     R/AT SHEENAPPA
     NEAR OM SHAKTHI TEMPLE
     MANGAMMANAPALYA
     BANGALORE - 560068
     (OWNER OF BAJAJ MOTORCYCLE
     NO. KA-01/EC-3393).

4.   RELIANCE GENERAL INSURANCE CO.LTD
     5TH FLOOR, CENTENARY BUILDING
     NO.28, M.G ROAD
     BANGALORE.

5.   BASAVARAJU
     HANUMANTHAPURA VILLAGE
     ATAGOORU HOBLI
     MADDUR TALUK
     MANDYA DISTRICT.             ...RESPONDENTS

(R1 SERVED.
Sri.K SURESHA, ADV FOR R2
R3 NOTICE DISPENSED WITH
SRI B PRADEEP ADV FOR R4
SRI B KESHAVAMURTHY ADV FOR R5)
                         3


     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
21.07.2014 PASSED IN MVC NO.84/2009 ON THE FILE OF
THE ADDITIONAL SENIOR CIVIL JUDGE RAMANAGARA,
PARTLY   ALLOWING     THE   CLAIM  PETITION    FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION AND ETC.
                       *****

IN M.F.A NO.594/2015
BETWEEN :


LEGAL MANAGER
RELIANCE GENERAL INSURANCE CO.LTD
RGIC, NO.28, EAST WING
5TH FLOOR, CENTENARY BUILDING
M.G ROAD, BANGALORE - 560001.     ...APPELLANT

(BY SRI.PRADEEP.B, ADVOCATE)

AND :


1.   SMT LAKSHMI
     W/O LATE H.B PRABHU
     AGED ABOUT 28 YEARS
     HANUMANTHAPURA VILLAGE
     ATAGOORU HOBLI
     MADDUR TALUUK, MANDYA DIST
     PRESENTLY R/AT
     KEMPEGOWDANADODDI
     KASABA HOBLI
     RAMANGARA TALUK AND
     DISTRICT- 562127.

2.   BASAVARAJU
     MAJOR
     HANUMANTHAPURA VILLAGE
     ATGAGHOORU HOBLI
                         4


     MADDUR TALUK
     RAMANAGARA DIST- 562127.

3.   GOPALA
     S/O LATE NAGEGOWDA
     NO.22, GOPASANDRA, KANAKAPURA TALUK
     RAMANAGARA DIST- 562127.

4.   THE ORIENTAL INSURANCE CO.LTD
     NO.22, V.C PLAZA, DR DVG ROAD
     BASAVANAGUDI
     BANGALORE - 04.

5.   VENKATARAJU V
     S/O VENKATAESHAPPA
     C/O SEENAPPA, MAJOR
     NEAR OM SHANKTHI TEMPLE
     MANGAMMANAPALYA
     BANGALORE - 68.
                                     ...RESPONDENTS
(BY SRI RAJU S, ADV FOR R1:
SRI KESHAVA MURTHY ADV FOR R2:
SRI. BHUSHANI KUMAR, ADV FOR R3
SRI C SHANKARA REDDY, ADV FOR R4:
R5-STEPS TO BE TAKEN.)

      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
21.07.2014 PASSED IN MVC NO.84/2009 ON THE FILE OF
THE ADDITIONAL SENIOR CIVIL JUDGE RAMANAGARA,
AWARDING A COMPENSATION OF RS.4,62,822/- WITH
INTEREST @ 6% P.A FROM THE DATE OF THE PETITION
TILL THE DATE OF REALIZATION AND ETC.

     THESE APPEALS COMING ON FOR ORDER, THIS DAY,
V.SRISHANANDA, J, DELIVERED THE FOLLOWING:
                                   5


                        JUDGMENT

Claimant and Insurance Company are in appeal in

MFA Nos.8455/2014 and MFA Nos.594/2015 respectively,

challenging the validity of the Judgment and Award dated

21st July 2014 on the file of Addl. Senior Civil Judge and

MACT, Ramanagara, in MVC No.84/2009 (hereinafter

referred to as "the Tribunal" for short).

2. The brief facts, which are necessary for

disposal of the appeals are as under:

A claim petition came to be filed under Section 166

of the Motor Vehicles Act seeking for compensation

alleging that on 24.08.2006 at about 12.00 noon, when

Mr.H.B.Prabhu was moving on a motor-cycle bearing

No.KA-01-EC-3393 on Bangalore-Marathhalli outer ring

road, dashed against a parked lorry bearing No.KA-02-469

without proper signal and sustained injuries and

succumbed to the injuries. It is further contended that

deceased was the sole bread-winner of the family and

thus, the claimants have sought for awarding suitable

compensation.

3. In response to the notice issued, respondents 1

and 3 who are the owner of the lorry and owner of the

motor-cycle remained absent and they were placed

exparte. Respondents 2 and 4 who are the Insurance

Company of the motor-cycle and lorry contested the

petition and filed the necessary objection statement.

When the petition came to be amended, filed written

statement so also filed by fourth respondent stating that

annual income of the petitioner would be Rs.72,000/-.

Therefore, the petition under Section 163-A is not

maintainable. Based on the rival contentions, the Tribunal

raised the following issues:

"1. Whether the petitioner proves that on 24.08.2006 at about 12.00 p.m., while the deceased H.B.Prabhu was proceeding with pillioner Krishna, on the motor cycle bearing No.KA-01-EC-3393, dashed to stationary lorry bearing No.KA-42-469 parked negligently near

ECO Space Business Park, on Marathhalli Outer Ring Road, Bangalore and succumbed to injuries sustained in the accident?

            2.   Whether     second       respondent       -
     Insurance      Co.   proves   that       the   accident

occurred due to rash and negligent riding of the motor cycle bearing No.KA-01-EC-3393 and dashing against parked lorry bearing No.KA-42- 469?

3.Whether petitioner is entitled to compensation? If so, what is the just quantum of compensation and from whom?"

4. In order to prove the claim petition averments,

wife of the deceased Lakshmi is examined as P.W.1 and

also examined one Basavaraj as P.W.2. On behalf of the

Insurance Company, Smt.Roopa has been examined as

R.W.1. On behalf of the claimants, police investigation

papers were exhibited and marked as Exs.P1 to P6 and

copies of the FIR, charge sheet, spot mahazar, inquest,

sketch, PM Report, policies of the vehicles and voters'

identity card were marked as Exs.P.1 to P.9. On behalf of

the Insurance Company, copy of the policy is marked as

Ex.R1.

5. On cumulative consideration of oral and

documentary evidence on record, the Tribunal allowed the

claim petition in part and awarded a sum of Rs.4,62,822/-

together with interest at 6% p.a., from the date of petition

till realization and held that Respondents 1 to 4 are jointly

and severally liable to pay the compensation and second

and fourth respondent being the Insurance Company

directed to pay the compensation with interest. The

compensation amount was also ordered to be paid in the

ratio of 50:50 by second and fourth respondents-Insurance

Companies. It is that judgment which is under challenge

by the claimants as well as Insurance Company in these

appeals.

6. While claimant sought for enhancement of the

compensation, Insurance Company contended that the

Tribunal failed to notice the ratio laid down by the Apex

Court in the case of NINGAMMA AND ANOTHER

v/s.UNITED INDIA INSURANCE COMPANY LIMITED

(2009(13) SCC 710) as well as NEW INDIA

INSURANCE COMPANY vs. SADANAND MUKHI

(2009(2) SCC 417). Insurance Company also contended

that deceased claimed that there was an income of

Rs.6,000/- p.m., and since it exceeded Rs.40,000/- p.a.,

the Tribunal did not have jurisdiction to allow the claim

petition under Section 163-A of the Motor Vehicles Act and

thus prayed for allowing the appeal.

7. Per contra, the learned counsel for the claimants

contended that the rider of the motor-cycle being not the

owner of the motor-cycle, as against the Insurance

Company is a third party and therefore, sought for

dismissing the appeal of the Insurance Company and

prayed for enhancement of the compensation.

8. In view of the rival contentions of the parties, the

following points would arise for consideration:

i) Whether the finding recorded by the Tribunal that Insurance Company of the

motor-cycle and the Insurance Company of the parked lorry are liable to pay the adjudged compensation inn a sum of Rs.4,62,822/- at the ratio of 50:50 is erroneous?

ii) Whether the claimants have made out a case for enhancement of the compensation?

9. The answer to the above points is in the negative

for the following:

REASONS

10. In the case on hand, accidental death of

Mr.Prabhu involving motor-cycle bearing No.KA-01-EC-

3393 and parked lorry bearing No.KA-42-469 is not in

dispute. Initially, the claim petition came to be filed under

Section 166 of the Motor Vehicles Act. Subsequently,

same was amended and the petition was sought to be

adjudicated under the provisions of Section 163-A of the

Motor Vehicles Act. The main contention urged by the

learned counsel for the Insurance Company is that the

Tribunal ought not to have allowed the claim petition

against the Insurance Company as the rider of the motor-

cycle would step into the shoes of the owner of the motor-

cycle as per the decision of the Hon'ble Apex Court in

NINGAMMA and SADANANDA MUKHI's case supra.

However, it is now well settled principle of law in view of

the Judgment of the Hon'ble Apex Court in UNITED

INDIA INSURANCE COMPANY LIMITED vs. SUNIL

KUMAR AND ANOTHER reported in (2014)1 SCC 680,

which was subsequently approved in the case of SHIVAJI

AND ANOTHER vs. DIVISIONAL MANAGER, UNITED

INDIA INSURANCE CO. LTD., reported in AIR 2018 SC

3705 that since the deceased is not the owner of the

motor-cycle, as against the Insurance Company, he would

be treated as a third-party. Therefore, the Insurance

Company is liable to pay the adjudged compensation. The

relevant portion of Sunil Kumar's case is culled out

hereunder:

"6. We are, therefore, of the view that liability to make compensation under Section

163-A is on the principle of no fault and, therefore, the question as to who is at fault is immaterial and foreign to an enquiry under Section 163-A. Section 163-A does not make any provision for apportionment of the liability. If the owner of the vehicle or the insurance company is permitted to prove contributory negligence or default or wrongful act on the part of the victim or claimant, naturally it would defeat the very object and purpose of Section 163-A of the Act. Legislature never wanted the claimant to plead or establish negligence on the part of the owner or the driver. Once it is established that death or permanent disablement occurred during the course of the user of the vehicle and the vehicle is insured, the insurance company or the owner, as the case may be, shall be liable to pay the compensation, which is a statutory obligation."

11. The said principals of law was again subject

matter of another decision in Shivaji's case cited supra.

Relevant portion of the said judgment is culled out

hereunder:

"5. The issue which arises before us is no longer res integra and is covered by a recent judgment of three judges of this Court in United India Insurance Co. Ltd. v. Sunil Kumar & Anr. AIR 2017 SC 5710, wherein it was held that to permit a defence of negligence of the claimant by the insurer and/or to understand Section 163A of the Act as contemplating such a situation, would be inconsistent with the legislative object behind introduction of this provision, which is "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". The Court observed that if an insurer was permitted to raise a defence of negligence under Section 163A of the Act, it would "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".

Consequently, it was held that in a proceeding under Section 163A of the Act, the insurer cannot raise any defence of negligence on the part of the victim to counter a claim for compensation."

12. Applying the legal principles enunciated,

deceased being not the owner of the motor-cycle, the

finding recorded by the Tribunal that the Insurance

Company of the motor-cycle bearing No.KA-01-EC-3393 is

liable to pay the adjudged compensation in the ratio of

50:50 thus cannot be held erroneous and accordingly,

point is answered. Insofar as the amount of compensation

is concerned, Tribunal has taken into consideration the II

Schedule to the Motor Vehicles Act and allowed a sum of

Rs.4,62,822/-. In the considered opinion of this Court,

since the petition is under Section 163-A of the Motor

Vehicles Act, award of sum of Rs.4,62,822/- is perfectly