Karnataka High Court
C M Murthy vs Chinnaswamy P on 7 January, 2021
Author: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.10835 OF 2013(MV)
BETWEEN:
C.M.MURTHY
S/O LATE MUDDAPPA
HINDU AGED 39 YEARS
R/OF CHANUVALLI, NARASIPURA POST
NELAMANGALA TALUK
BANGALORE RURAL DISTRICT
NOW R/AT NO.14,5TH MAIN
4TH CROSS, RANGANATHA NILAYA
DASARAHALLI, BANGALORE-73.
... APPELLANT
(BY SRI.T.C.SATHISHKUMAR, ADV. )
AND
1. CHINNASWAMY P.
S/O POTHARAJ, HINDU MAJOR
R/AT NO.10, S.S.S. BUILDING
1ST MAIN, A.V. ROAD
CHAMARAJPET, BANGALORE-18.
2. THE BRANCH MANAGER
SHRIRAM GENERAL INSURANCE CO. LTD.,
NO-E-8, RICO INDUSTRIAL AREA
2
SITAPURA, JAIPURA
RAJASTHAN-302022.
... RESPONDENTS
(BY SRI. B.PRADEEP, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED:08.07.2016)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 15.10.2013 PASSED IN MVC NO.6183/2012
ON THE FILE OF THE XXI ADDITIONAL SMALL CAUSES
JUDGE, & XIX ACMM, MEMBER, MACT, COURT OF
SMALL CAUSES, BANGALORE, DISMISSING THE
CLAIM PETITION FOR COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS
DAY, THE 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 15.10.2013 passed
by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 9.9.2020 when the claimant
along with wife, who was nine months pregnant were
proceeding on motorcycle Bearing registration No.KA-
06-K-1735 from his village towards Tumkur Road on
NH4 road, near Chikahalli gate, at that time, a lorry
bearing registration No.KA-01-B-5776 which was
being driven in a rash and negligent manner, dashed
against the motorcycle of the claimant. As a result of
the aforesaid accident, the claimant sustained
grievous injuries and his wife, who was a pillion rider
fell down and sustained grievous injuries and
succumbed to the injuries on the spot.
3. The claimant filed a petition under Section
166 of the Act on the ground that he has already
made claim with regard to death of his wife and also
injuries sustained by him, but had not made claim for
the death of 9 months female fetus. The claimant
claimed compensation to the tune of Rs.5,40,000/-
along with interest.
4. On service of summons, the respondent
No.2 appeared through counsel and filed written
statement in which the averments made in the
petition were denied. It was pleaded that the petition
itself is false and frivolous in the eye of law. The
liability is subject to terms and conditions of the
policy. Mandatory provisions of Section 134(C) and
158(6) of MV Act are not complied with. Hence, he
sought for dismissal of the petition. The respondent
No.1 did not appear inspite of service of notice and
was placed ex-parte.
5. On the basis of the pleadings of the parties,
the Claims Tribunal framed the issues and thereafter
recorded the evidence. The claimant, in order to
prove his case, examined claimant No.1 as PW-1 and
got exhibited documents namely Ex.P1 to Ex.P11. On
behalf of respondents, neither any witness was
examined nor any document was produced. The
Claims Tribunal, by the impugned judgment, inter alia,
dismissed the claim petition. Being aggrieved, this
appeal has been filed.
6. The learned counsel for the claimant has
contended that the claimant had already filed claim
petitions i.e., MVC 7242/2010 and 7243/2010
claiming compensation for death of his wife and also
injuries sustained to him in the road traffic accident
occurred on 9.9.2010 due to rash and negligent
driving of the offending vehicle. But, he had not made
claim for the death of 9 months female fetus. The
Tribunal by judgment and award dated 25.5.2012 had
granted compensation in respect of death of his wife
and also injuries sustained to him. But in respect of
death of 9 months fetus no claim was made. In
support of his case he has relied upon the judgment of
the this Court in the case of Shanthaveerappa and
another -v- ICICI Lombard General Insurance
Co. Ltd. and others reported in 2020 ACJ 1504,
Hence, he prays for allowing the appeal.
7. On the other hand, the learned counsel for
the Insurance Company has contended that it is very
clear from the judgment of the Tribunal dated
25.5.2012 passed in MVC 7242/2010 and 7243/2010,
even if no claim was made for death of 9 months
fetus, the Tribunal had granted a sum of Rs.15,000/-
for the death of 9 months child in the womb.
Therefore, the claim petition is not maintainable and
Tribunal has rightly rejected the claim petition.
8. Heard the learned counsel for the parties
and perused the records.
9. It is not in dispute that on 9.9.2020, the
claimant sustained injuries and his wife,
Smt.Bhagyamma, who was 9 months pregnant died in
the road traffic accident due to rash and negligent
driving of the offending vehicle by its driver.
In earlier claim petitions i.e., MVC 7242/2010
and 7243/2010, the claim is only in respect of death
of his wife and injuries sustained by him. There was
no claim for death of fetus. This court in the case of
Shanthaveerappa and another (supra), has awarded
compensation of Rs.2,00,000/- for a stillborn baby.
Therefore considering the materials available on
record and the judgment of the this Court in the case
of Shanthaveerappa and another (supra), the claimant
is entitled for compensation of Rs.2,00,000/- for the
death of 9 months fetus in the womb of the deceased.
Since, the Tribunal had already granted a sum of
Rs.15,000/- for the death of 9 months child in the
womb in the earlier claim petitions filed by the
claimant, after deducting the same, the claimant is
entitled for compensation of Rs.1,85,000/-
(Rs.2,00,000 - Rs.15,000) along with interest.
The Insurance Company is directed to deposit
the compensation amount along with interest at 6%
p.a. within a period of four weeks from the date of
receipt of copy of this judgment.
To the aforesaid extent, the judgment of the
Claims Tribunal is modified.
Accordingly, the appeal is allowed-in-part.
Sd/-
JUDGE
DM
