The Branch Manager vs Subbappa Dead By Lrs
2021 Latest Caselaw 593 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 11TH DAY OF JANUARY 2021

                      BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

            MFA No. 8945 OF 2013(MV)

BETWEEN:

THE BRANCH MANAGER
THE ORIENTAL INSURANCE CO. LTD.,
OPP. KEB OFFICE
MC ROAD, MANDYA
NOW REPRESENTED BY ITS
THE REGIONAL MANAGER
REGIONAL OFFICE, 4TH FLOOR
44/45, LEO SHOPPING COMPLEX
RESIDENCY ROAD, BANGALORE.
                                    ... APPELLANT

(BY SMT. HARINI SHIVANAD, ADV. )

AND

1.    SUBBAPPA
      DEAD BY HIS LR'S.

1(a). GANESHA
      39 YEARS
      S/O LATE SUBBAPPA.

1(b) VASANTHA
     37 YEARS
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     D/O LATE. SUBBAPPA.

2.   MAHADEVAMMA
     52 YEARS
     W/O LATE SUBBAPPA.

     ALL ARE R/O BELAKVADI VILLAGE
     MALAVALLI TALUK
     MANDYA DISTRICT-571401.

3.   SRI. MANSOOR PASHA
     MAJOR, S/O LATE ABDUL KUDDUS
     TUMSOGE GRAMA, MALLUR HUNDI
     HD KOTE TALUK
     MYSORE DISTRICT-570 001.

4.   SRI.S.AMERZAN, MAJOR
     S/O ADAM KHAN
     NO.1840, MOSQUE ROAD
     K.R.MOHALLA, MYSORE-570001.
                              ... RESPONDENTS

(BY SRI. RAJANNA, ADV. FOR R1 & R2 (ABSENT)
R3 SERVED & UNREPRESENTED
NOTICE TO R4 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 26.06.2013 PASSED IN MVC NO.254/2006 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND MACT,
MALAVALLI, AWARDING A COMPENSATION OF
RS.71,000/- WITH INTEREST @ 6% P.A. FROM THE
DATE OF PETITION TILL THE DATE OF DEPOSIT.
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    THIS MFA COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE, 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 Insurance Company

being aggrieved by the judgment dated 26.06.2013

passed by the Motor Accident Claims Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 05.12.1999, deceased

Basavaraju as a driver of tempo bearing Reg.No.KA-

09-4188 was proceeding from H.D.Kote towards

Mysore slowly and cautiously on left side of the road,

at about 1.30 p.m. when he reached near Salundi

Village on H.D.Kote - Mysore road, a lorry bearing

registration No.MEC-4755 being driven by its driver at

a high speed and in a rash and negligent manner,

dashed against the tempo of the deceased. As a

result of the aforesaid accident, the deceased

sustained grievous injuries and succumbed to the

injuries.

3. The claimants filed a petition under Section

163(A) of the Act on the ground that the deceased

was driver by profession and was earning Rs.5,000/-

per month. The claimants claimed compensation to

the tune of Rs.5,45,000/- along with interest.

4. On service of summons, respondent No.3

appeared through its counsel and filed written

statement and additional written statement in which

the averments made in the petition were denied. It

was pleaded that the offending vehicle was insured

with this respondent on the alleged date of accident.

It was further pleaded that driver of the offending

vehicle was not holding valid and effective driving

licence to drive the same as on the date of accident.

It was further pleaded in the additional written

statement that accident was occurred due to negligent

act on the part of driver of the offending vehicle and

he was sole reasons for the account. It was further

pleaded that the petition is bad for non-joinder of

necessary parties as the owner and insurer of the

Tempo have not been made as parties. Hence, he

sought for dismissal of the petition.

The respondent No.2 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 issues and thereafter

recorded the evidence. The claimants, in order to

prove their case, examined claimant No.1 as PW-1

and four other witnesses were examined as PWs-2 to

5 and got exhibited 3 documents namely Ex.P1 to

Ex.P3. On behalf of respondents, officer of the

Insurance Company was examined as RW-1 and

another witness as RW.2 and got exhibited 1

document as Ex.R1. The Claims Tribunal, by the

impugned judgment, inter alia, held that accident took

place on account of rash and negligent driving of the

offending vehicle by its driver, as a result of which,

the deceased sustained injuries and succumbed to the

injuries. The Tribunal further held that the claimants

are entitled to a compensation of Rs.71,000/- along

with interest at the rate of 6% p.a. and directed

Insurance Company to deposit the compensation

amount along with interest. Being aggrieved, this

appeal has been filed.

6. The learned counsel for the Insurance

Company has raised the following contentions:

Firstly, the accident has occurred due to rash

and negligent driving of the tempo bearing

Reg.No.KA-09-4188 by the deceased himself. The

Tribunal is not justified in holding that accident was

occurred due to rash and negligent driving of driver of

the Lorry bearing Reg.No.MEC-4755. In support of

her contention, she has relied upon the judgment of

the Apex Court in the case of NATIONAL

INSURANCE COMPANY LTD., -V- SINITHA AND

OTHERS reported in 2012 (2) SCC 356. Hence, the

learned counsel appearing for the Insurance Company

prays for allowing the appeal.

7. On the other hand, learned counsel for the

claimants has raised the following counter-

contentions:

Firstly, that the claim petition is filed under

Section 163(A) of Motor Vehicles Act. In view of the

law laid down by the Hon'ble Apex Court in the case of

United India Insurance Company Ltd. -v- Sunil

Kumar and another reported in AIR 2017 SC

5710, there is no defence available to the Insurance

Company to plead negligence on the part of the

deceased. Therefore, the claimants need not prove

negligence. Hence, the learned counsel for the

claimants prays for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award of the claims

Tribunal and original records.

9. It is not in dispute that Tribunal has held

that deceased Basavaraju died in a road traffic

accident occurred on 05.12.1999 due to rash and

negligent driving of the offending vehicle by its driver.

The legal representatives of the deceased Basavaraju

has filed claim petition under Section 163(A) of the

Motor Vehicles Act. The Apex Court in the case of

Sunil Kumar (supra), has held that in the claim

proceedings filed under Section 163 (A) of the Act,

there is no defence available to the insurer to plead

contributory negligence on the part of the victim. The

claimants need not prove the negligence.

10. In view of the above, the appeal filed by

the Insurance Company is not maintainable.

Accordingly, the appeal is dismissed.

The judgment and award passed by the Tribunal

is confirmed.

Amount in deposit before this Court shall be

transferred to the Tribunal.

Sd/-

JUDGE

Mkm