Karnataka High Court
The National Insurance Company ... vs Shahajabi Ibrahim Multani on 13 January, 2021
Author: Ashok S. Kinagi
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
MFA No.102347/2014 (MV-D)
Between:
The National Insurance Co. Ltd.,
Ramdev Galli, Belgaum,
Rep. by Deputy Manager,
Divisional Office, Hubli.
... Appellant
(By Smt. Veena Hegde, Advocate)
And:
1. Shahajabi Ibrahim Multani,
Age 37 years, Occ: Household,
2. Mahaboob S/o.Ibrahim Multani
Age 21 years, Occ: Nil,
3. Asma D/o. Ibrahim Multani,
Age 17 years, Occ: Nil,
4. Moula S/o. Ibrahim Multani,
Age 16 years, Occ: Nil,
5. Smt. Biyama W/o.BAbasab Multani,
Age 67 years, Occ: Nil,
All are R/o.: Sultanpur, Tq.: Hukkeri,
Dist.: Belgaum.
6. Shri Mallikarjuna S/o.Sattyappa Benawadi,
2
Age major, Occ: Busienss,
R/o.: Ashirwad Building, H.No.516,
Mahantesh Nagar,
Ghataprabha, Gokak Taluka,
Belgaum District.
7. Pundalik Kallappa Hattarwat,
Age major, Occ: Business,
R/o: at/post Mallapur P.G.,
Post Ghataprabha, Gokak Taluka,
Belgaum District.
8. Shri Basawani Shivaling Marabasannavar,
Age major, Occ: Business,
R/at Nejanal, Hukkeri Taluk,
Belgaum District.
... Respondents
(By Shri Santosh B.Rawoot, Advocate for R6;
Shri Vittal S. Teli, Advocate for R8;
R1, R2, R7 - served;
R3 and R4 - minors rep. by R1;
R5 - deceased)
This MFA is filed u/S.173(1) of M.V. Act, 1988 against the
judgment and award dated 27.04.2013, passed in MVC
No.342/2012 on the file of the Presiding Officer, Fast Track
Court-IV, Belgaum awarding the compensation of Rs.4,55,000/-
with interest at the rate of 9% p.a. from the date of petition till
the date of deposit.
This appeal coming on for orders, this day, the Court
delivered the following:
JUDGMENT
1. The appellant-Insurance Company aggrieved by the
judgment and award dated 27.04.2013, passed in MVC
No.342/2012 by the Presiding Officer, Fast Track Court-IV,
Belgaum (for short "the tribunal").
2. For the sake of convenience, the parties would be
referred to as per their ranking before the tribunal.
3. The brief facts of the case is that on 18.09.2010 at
about 4:00 p.m. the deceased was pillion rider on motorcycle
and proceedings from Hukeri to Ghataprabha side on Hukeri
Ghataprabha road on correct side of the road. At that time, a
Maruti Alto Car bearing registration No.KA-49/M-1171 came in a
rash and negligent manner and dashed to the motorcycle
thereby caused the accident. Due to the impact, both the riders
on the motorcycle fell on the road and sustained fatal injuries
and died in the hospital during treatment. The alleged accident
was due to use and rash and negligent driving of car by its driver
only. Hence, the respondents are jointly and severally liable to
pay compensation to the petitioners.
4. Originally, the claim petition was filed under Section
163-A of the M.V. Act against the respondent Nos.1 and 2 i.e.,
owner of Maruti Alto Car and the Insurance Company.
Subsequently, an application was filed for impleading the owner
of the motor vehicle involved in the accident i.e., Bajaj M80
bearing registration No.KA-23/H-7647.
5. Respondent No.1 placed exparte, respondent No.3
remained absent. Respondent Nos.2 and 4 have appeared
through their counsel. The owner of the motor vehicle filed
objections denying the petition averments. He has also denied
the age, income, occupation of the deceased and has stated that
the compensation claimed by the petitioners is exorbitant and
excessive. It is stated that the accident occurred due to rash and
negligent riding the motor vehicle bearing registration
No.KA-23/H-7647 by the deceased himself. The offending car is
insured with the National Insurance Co. Ltd., The Insurance
Company filed its written statement denying the averments
made in the claim petition and has not admitted the age, income
and occupation of the deceased. The respondent No.2 -
Insurance Company reiterated the statement of objections filed
by the owner of the offending car. Hence, he prayed to dismiss
the petition.
6. The tribunal based on the pleadings, framed six
issues and two additional issues.
7. In order to prove the case of the claimants, the
second petitioner was examined as PW1 and got marked Exs.P1
to P7. On the other hand, respondent No.2 filed a memo staing
that in the connected MVC No.2122/2010 respondent No.2 has
adduced evidence and the same be treated as evidence of
respondent No.2 in this case also. The tribunal after taking into
consideration the pleadings and documents produced by the
parties has held that the petitioners have to prove that the
accident, which occurred due to the use and involvement of the
car bearing registration No.KA-49/M-1171 by its driver and also
held that the claimants-petitioners are entitled to compensation
of Rs.4,55,000/-.
8. Insofar as the liability is concerned, the tribunal has
held that there was contributory negligence on the part of the
driver of the car and also the rider of the motor vehicle and
fastened the liability of 90% on respondent Nos.1 and 2 and
10% on respondent Nos.3 and 4 jointly and severally.
9. The learned counsel for the appellant - Insurance
Company submits that the tribunal was justified in fastening
10% liability on respondent Nos.3 and 4. She further submits
that the tribunal has committed an error in awarding 9% p.a.
interest instead of 6% p.a. However, she agrees with the
submission made by the learned counsel for the claimants that
the tribunal has committed an error in deducting personal
expenses of the deceased at 1/4th instead of 1/3rd. Hence, she
prays to allow the appeal.
10. Per contra, the learned counsel for the petitioner
submits that the tribunal has committed an error in deducting
personal expenses of 1/4th instead of 1/3rd. He further submits
with regard to negligence, the tribunal cannot be considered any
proceedings under Section 163-A of M.V. Act. It is not open for
the insurer to raise any defence on the part of the victims. He
submits that the tribunal has committed an error in fastening
liability of 10% on respondent Nos.3 and 4. Hence, he prays to
allow the appeal filed by the petitioners-claimants and also
prayed to dismiss the appeal filed by the appellant-Insurance
Company.
11. I have considered the submissions of the learned
counsel appearing for the parties. The admitted fact that the
deceased died in the accident, which occurred on 18.09.2010.
The only contention raised by the insurance company is
contributory negligence. Admittedly the claim petition is filed
under Section 163-A of the M.V. Act. When a claim petition filed
under Section 163-A of the M.V. Act, it is not open for the insurer
to raise any defence of negligence on the part of the victims.
12. It is clear that the grant of compensation in a petition
filed under Section 163-A of the M.V. Act on the basis of
structured formula is in the nature of final award and
adjudication thereunder is required to be made without any
requirement of any proof of negligence of the driver/owner of the
vehicle involved in the accident. The said view is supported by
the judgment of the Hon'ble Supreme Court in the case of
United India Insurance Co. Ltd., v. Sunil Kumar and
another reported in 2018 ACJ 1 and also in the case of
Chandrakanta Tiwari vs. New India Assurance Co. Ltd.,
and another reported in 2020 ACJ 2552, wherein the Hon'ble
Apex court has held that from the personal of Section 163-A of
the M.V. Act, the claimant need not plead or establish that the
death in respect of which the claim was made, was due to any
negligence or default of the owner of the vehicle or of any other
person. Hence, in view of the law laid down by the Hon'ble
Supreme Court that the claimant need not prove the negligence
of the driver/owner of the vehicle involved in the accident. The
submission of the learned counsel for the second respondent
does not hold water in view of the law laid down by the Hon'ble
Supreme Court and the liability fixed on respondent Nos.3 and 4
is concerned, the tribunal has committed an error in fastening
the liability of 10% on respondent Nos.3 and 4. As discussed
above and also the law laid down by the Hon'ble Supreme Court
as there is no requirement under Section 163-A of the M.V. Act
to prove the negligence of vehicle involved in the accident.
13. As far as deduction towards personal expenses of the
deceased is concerned, the tribunal erred in deducting 1/4th
towards personal expenses instead of 1/3rd since there were five
dependents to the deceased. Hence, the tribunal erred in
deducting personal expenses of the deceased.
Rs.3,300/- x 12 x 15 x 2/3 = Rs.3,96,000/-.
14. Further, as per second schedule to Section 163-A of
the M.V. Act, the claimants would be entitled to a sum of
Rs.2,000/- toward funeral expenses, Rs.5,000/- towards loss of
consortium and Rs.2,500/- toward loss of estate.
15. Thus, in all the claimants would be entitled to a
compensation of Rs.4,05,500/- instead of Rs.4,55,000/- awarded
by the tribunal with interest at the rate of 6% p.a from the date
of petition till the date of realization.
16. Accordingly, the appeal filed by the appellant
insurance company is allowed in part. The judgment and award
dated 27.04.2013, passed in MVC No.342/2012 by the Presiding
Officer, Fast Track Court-IV, Belgaum is hereby modified.
17. The Insurance Company is directed to deposit the
entire compensation amount before the tribunal within a period
of four weeks from the date of receipt of a copy of this order.
The amount in deposit, if any, before this Court is ordered
to be transmitted to the tribunal for disbursement.
SD/-
JUDGE
Vnp*
