The Regional Manager vs Mahadevamma @ Madevamma
2021 Latest Caselaw 761 Kant

                         1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 13TH DAY OF JANUARY, 2021

                      PRESENT

        THE HON'BLE MR.JUSTICE ALOK ARADHE

                        AND

     THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY

            M.F.A. NO.1818 OF 2013 (MV)
                       C/W
           M.F.A. CROB NO.57 OF 2013 (MV)
                         IN
            M.F.A. No.1818 OF 2013 (MV)

IN MFA NO.1818/2013:

BETWEEN:

THE REGIONAL MANAGER,
ROYAL SUDRAM ALLIANCE
INSURANCE COMPANY LIMITED ,
SUNDRAM TOWERS, NO.46,
WHITES ROAD, ROYAPETTAH,
CHENNAI -600 014.
BY
ROYAL SUNDARAM ALLIANCE COMPANY LTD.,
SUBRAMANIAM BUILDING,
II FLOOR, NO.1,
CLUB HOUSE ROAD,
ANNSASALAI,
CHENNAI-600 002.
                              ...APPELLANT
(BY SRI. O. MAHESH, ADVOCATE)
                          2



AND:

1.     MAHADEVAMMA @ MADEVAMMA
       AGED ABOUT 46 YEAR,
       W/O LATE MALLANAYAKA @
       CHIKKAMALLANAYAKA,

2.     PARVATHI
       AGE 34 YEAR,
       D/O LATE MALLANAYAKA @
       CHIKKAMALLANAYAKA,

       BOTH ARE R/O AT KUMARABEEDU
       VILLAGE,
       YELAWALA HOBLI,
       MYSORE TALUK-570 001.

3.     K. RAMANATH
       AGED 44 YEAR,
       S/O KESHAVAMURTHY,
       NO.28/B, LAKSHMI NAGAR,
       2ND CROSS, KIRLOSKAR COLONY,
       3RD MAIN, 3RD STAGE,
       BASAWESWAR NAGAR,
       BANGALORE-560 079.
                                ...RESPONDENTS

(BY SRI. R.C.NAGARAJ, ADVOCATE FOR RESPONDENT
NOs.1 AND 2(ABSENT);
SERVICE OF NOTICE ON RESPONDENT NO.3 IS HELD
SUFFICIENT VIDE COURT ORDER DATED 23.09.2015)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,
1988 AGAINST THE JUDGMENT AND AWARD DATED
07.12.2012 PASSED IN MVC NO.386/2012 ON THE FILE OF
THE PRESIDING OFFICER, FAST TRACK COURT-I AND
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL AT
MYSORE AWARDING A COMPENSATION OF RS.4,12,500/-
                           3



WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION
TILL REALIZATION.


IN MFA CROB. NO.57/2013:


BETWEEN:

1.     MAHADEVAMMA @ MADEVAMMA,
       W/O LATE MALLANAYAKA @
       CHIKKAMALLANAYAKA,
       AGE 46 YEARS

2.     PARVATHI
       D/O LATE MALLANAYAKA
       @ CHIKKAMALLANAYAKA,
       AGE 34 YEARS,

       BOTH ARE R/O KUMARABEEDU
       VILLAGE,
       YELWALA HOBLI,
       MYSORE DISTRICT-570001.

                        ...CROSS OBJECTORS

(BY SRI. R.C. NAGARAJ, ADVOCATE)

AND:

1.     K. RAMANATH
       S/O KESHAVAMURTHY,
       44 YEARS,
       NO.28/B, LAKSHMI NAGAR,
       2ND CROSS, KIRLOSKAR COLONY,
       3RD MAIN, 3RD STAGE,
       BASAWESWARANAGAR,
       BANGALORE-560079.
                             4



2.   ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD.,
     SUNDARAM TOWERS, NO.46,
     WHITES ROAD, ROYAPETTAH,
     CHENNAI-600141.
     REP. BY ITS REGIONAL MANAGER.

                                ...RESPONDENTS

     THIS MFA CROB. IN MFA No.1818/2013 IS FILED
UNDER ORDER 41 RULE 22 OF THE CIVIL PROCEDURE
CODE, READ WITH SECTION 173(1) OF THE MOTOR
VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND
AWARD DATED 07.12.2012 PASSED IN MVC NO.386/2012
ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK
COURT-I AND MEMBER, ADDITIONAL MOTOR ACCIDENT
CLAIMS TRIBUNAL, MYSORE, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

    THIS APPEAL CONNECTED WITH MFA CROB.
COMING ON FOR ORDERS THIS DAY, NATARAJ
RANGASWAMY, J., DELIVERED THE FOLLOWING:


                      JUDGMENT

MFA No.1818/2013 is filed by the insurer challenging

the liability imposed upon it by the Fast Track Court - I

and Additional Motor Accident Claims Tribunal at Mysuru

(hereinafter referred to as the 'Tribunal') to pay the

compensation awarded by it in MVC No.386/2012 as well

as the quantum of compensation awarded. MFA.Crob

No.57/2013 is filed by the cross-objectors seeking

enhancement of compensation awarded by the Tribunal.

2. The appellant in MFA No.1818/2013 and

respondent No.2 - Company in MFA.Crob No.57/2013 will

henceforth be referred to as the 'insurer' of the offending

car involved in the accident. Respondent No.3 in MFA

No.1818/2013, who is arrayed as respondent No.1 in

MFA.Crob No.57/2013, will henceforth be referred to as

the 'owner' of the offending car involved in the accident.

Respondent Nos.1 and 2 in MFA No.1818/2013, who are

cross-objectors in MFA.Crob No.57/2013, will henceforth

be referred to as the 'claimants'.

3. Though this appeal and cross-objection are

listed for admission, since the records of the Tribunal are

received and as the learned counsel for parties consented

for final disposal, the appeal and cross-objection are taken

up for final disposal.

MFA No.1818/2013

4. The claim petition discloses that the claimants

are the legal representatives of a person named Mr.Vasu.

It is stated that on 30.12.2010, Vasu was traveling on a

motorcycle bearing registration No.KA-03-E-5167 towards

Mysore from KRS. When he reached Mount Ford school,

Belagola, on Mysuru - K.R. Sagar road, a car bearing

registration No.KA-53-M-6542 (hereinafter referred to as

the 'offending car') came from the opposite direction in a

rash and negligent manner and dashed against the

motorcycle. As a result, Mr. Vasu fell down and sustained

injuries. He was shifted to K.R. hospital, Mysore, where he

died in the evening on the same day. The claimants

contended that Mr. Vasu was aged 24 years old and was

working as a mechanic and earning Rs.3,300/- per month.

They contended that they were dependent upon the

deceased and on account of his sudden death, they had

lost the emotional and financial support of Sri Vasu. The

claimants filed the petition under Section 163A of the

Motor Vehicles Act, 1988 (hereinafter referred to as 'the

Act') claiming compensation from the owner and insurer of

the offending car.

5. The insurer contested the claim petition and

contended that the deceased was negligent and

responsible for the accident. It also contended that the car

in question was not covered by an insurance issued by it.

Alternatively, it contended that the driver of the car also

did not possess a valid licence. With these contentions,

claim petition was set down for trial.

6. The claimant No.1 was examined as PW.1 and

he marked documents as Exs.P1 to P8. The insurer

examined its legal head as RW.1 and marked documents

Exs.R1 and R2. The Tribunal found from the evidence on

record that the accident occurred between the motorcycle

ridden by the deceased as well as the car. Since the

petition was under section 163A of the Act, the Tribunal

held that there was no need to prove negligence and based

on the contention of the claimants that the income of the

deceased was Rs.3,300/- per month, the Tribunal

considered the income of the deceased at Rs.3,000/- per

month and deducted 1/3rd of the same towards his

personal expenses. The Tribunal therefore held that the

annual dependency of the claimants on the deceased was

Rs.24,000/- and hence, applied multiplier of 17 and as per

Schedule II to the Act, awarded a sum of Rs.4,08,000/-

towards loss of dependency as well as a sum of Rs.4,500/-

under the conventional heads.

7. The insurer of the offending vehicle has filed

this appeal and contends that the Tribunal ought not to

have entertained the petition since the income of the

deceased was artificially brought down to a sum of

Rs.3,300/- per month while the notional income as

prescribed by the Karnataka State Legal Services Authority

for accidents which occurred during the corresponding year

was a sum of Rs.5,500/- to Rs.6,500/-. Therefore, the

learned counsel for the insurer contended that the petition

under Section 163A of the Act, is not maintainable if the

annual income of the deceased is more than a sum of

Rs.40,000/-. The learned counsel also contended that in

order to overcome the question of negligence, the claim

petition was filed and therefore, the learned counsel

submitted that the claimants were not entitled to any

compensation arising out of negligence on the part of the

deceased. The learned counsel also contended that the

age of the dependants ought to have been considered and

not the age of the deceased. The learned counsel further

contended that 50% of the annual income of the deceased

must have been deducted towards the living expenses of

the deceased.

8. Per contra, learned counsel for the claimants

submitted that the deceased was in fact earning a sum of

Rs.3,300/- per month and that there was no attempt to

conceal his income or that they were trying to bring the

petition within the limits prescribed for the purpose of

section 163A of the Act. The learned counsel relied upon

the judgment of the Apex Court in the case of

Chikkamma and another vs. Parvathamma and

another reported in 2018 (18) SCC 712 and contended

that the age of the deceased should alone be taken for the

purpose of calculating the multiplier and not the age of the

dependants. Learned counsel also contended that the

deceased had left behind more than three dependants and

therefore, the Tribunal was right in deducting 1/3rd of the

income of the deceased and not 50% of the income of the

deceased. The learned counsel also relied upon the

judgment of the Apex Court in the case of National

Insurance Company Limited vs. Pranay Sethi and

others reported in 2017 (16) SCC 680 and contended that

the claimants were the mother and sister of the deceased

and therefore, the Tribunal was right in deducting 1/3rd

towards the living expenses of the deceased.

9. As rightly contended by the learned counsel for

the claimants, the question of proving negligence in a

proceeding under Section 163A of the Act would not arise

in view of the judgment of the Apex Court in the case of

Ramkhiladi vs. The United India Insurance Company

Limited and another reported in 2020(2) SCC 550.

Further, the deceased had left behind the claimants, who

were dependent on the deceased. Hence, the Tribunal was

right in deducting 1/3rd and not 50%. Further, Section

163A of the Act is provided specifically so as to provide

relief in cases where negligence cannot be proved.

Therefore, once the claimants have chosen to make a

claim under Section 163A of the Act, the insurer cannot

raise any defence regarding negligence. At any rate, the

negligence on the part of the deceased could not have

been arrived at on the basis of documents prepared by the

police. In this regard, the Apex Court had in Minurout Vs.

Satya Pradyumna Mohapatra reported in (2013) 10

SCC 695 and Sarala Devi vs. Royal Sundaram Alliance

Insurance Co. Ltd., reported in (2014) 15 SCC 450

held that the documents prepared by the police in the

course of their investigation cannot be the basis of

determining the negligence. Be that as it may, since the

Tribunal has considered the grant of compensation under

section 163A of the Act and has awarded compensation in

accordance with Schedule II to the Act, the claim of the

insurer is unsustainable. The appeal filed by the insurer is

liable to be dismissed.

MFA.CROB. No.57/2013

10. MFA.Crob.No.57/2013 is filed by the claimants

seeking enhancement of the compensation awarded by the

Tribunal in MVC No.386/2012. It is noticed that the claim

petition is filed under Section 163A of the Act in respect of

an accident which occurred on 30.12.2010 in which the

son of the claimant No.1 and the brother of claimant No.2

expired. The claimants contended that the income of the

deceased was a sum of Rs.3,300/- per month. The

Tribunal considered the income of the deceased at a sum

of Rs.3,000/- per month and in accordance with the

Schedule II to the Act, granted compensation of a sum of

Rs.4,12,500/-. The claimants have filed this cross-

objection contending that the Tribunal ought to have

awarded higher compensation towards loss of income. It

is claimed that there was medical expenses and that the

Tribunal ought to have awarded compensation towards

loss of love and affection and ought to have awarded

compensation towards loss of estate. It is relevant to note

that Section 163A of the Act is not akin to 166 of the Act.

The standard formula contained in Schedule II to the Act is

only for the purpose of ensuring compensation to a person

without he proving negligence.

11. In that view of the matter, the Tribunal has

rightly assessed the compensation based on the claim of

the claimants that the deceased was earning Rs.3,300/-

per month. This Court does not see any merit in the cross-

objection filed by the claimants.

Hence, appeal, MFA No.1818/2013, is dismissed.

MFA.Crob. No.57/2013 is also dismissed.

Sd/-

JUDGE

Sd/-

JUDGE sma