Karnataka High Court
Sri.Puttaswamy vs M/S. Bharati Axa General ... on 15 January, 2021
Author: H T Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.6478/2013 (MV)
BETWEEN:
1. SRI. PUTTASWAMY
S/O LATE SIDDEGOWDA
AGED ABOUT 57 YEARS
2. SMT. BHAGYAMMA
W/O PUTTASWAMY
AGED ABOUT 42 YEARS
BOTH ARE RESIDING AT
NANNUR VILLAGE, NERALUR POST
VIRUPAKSHAPURA HOBLI
CHANNAPATNA TALUK
RAMANAGAR DISTRICT
... APPELLANTS
(BY SRI. V. JAVAHAR BABU, ADV.)
AND
1. M/S. BHARATI AXA GENERAL INSURANCE CO.
LTD.
(THROUGH ITS REGIONAL OFFICE)
PRIDE QUARDA, NO.30, II FLOOR
BELLARY ROAD, HEBBAL
2
BANGALORE - 560024
2. THE MANAGING DIRECTOR
M/S. ICM LOGISTICS PRIVATE LTD.
W-121, FIRM TOWER, III FLOOR
3RD AVENUE, ANNANAGAR
CHENNAI - 600040
3. M/S. CHOLAMANDALAM M. S.
GENERAL INSURANCE CO. LTD.
NO.9/1, ULSOOR ROAD
BANGALORE - 42
4. SMT. MARAGAMMA
W/O KARIYAPPA
NO.83, MOLE VILLAGE
CHANNAPATNA TALUK
RAMANAGARAM DISTRICT - 571511
... RESPONDENTS
(BY SRI. A. N. KRISHNASWAMY, ADV. FOR R1
SRI. A. NIRANJAN KUMAR, ADV. FOR
SMT. NALINI VENKATESH, ADV. FOR R4
SRI. O. MAHESH, ADV. FOR R3)
THIS MFA IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD
DATED 03.05.2013 PASSED IN MVC NO.6574/2011
ON THE FILE OF IX ADDITIONAL SMALL CAUSES
JUDGE AND XXXIV ACMM, MEMBER, MACT-7, COURT
OF SMALL CAUSES, BANGALORE, DISMISSING THE
CLAIM PETITION FOR COMPENSATION.
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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 claimants being
aggrieved by the judgment dated 3.5.2013 passed by
the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 8.8.2011 the deceased
P.Kumar was proceeding as driver of the Goods
Tempo Bearing registration No.KA-42-7133 from
Tumkur towards Bangalore on the left side of the road
on Poona Bangalore NH-4 road, near HMT main gate,
Khyatsandra Tumkur, at that time, a lorry bearing
registration No.HR-55-K-4666 which was being driven
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
163A of the Act on the ground that the deceased was
aged about 19 years at the time of accident and was
driver and was earning Rs.3,200/- p.m. The claimants
claimed compensation to the tune of Rs.8,00,000/-
along with interest.
4. On service of summons, the respondent
Nos.1, 3 and 4 appeared through counsel and filed
written statements in which the averments made in
the petition were denied. Respondent No.1, insurer of
lorry has pleaded that the lorry is insured with this
respondent and the liability is subject to terms and
conditions of the policy. It was further pleaded that
the accident was due to the rash and negligent driving
of the tempo by the deceased himself. The driver of
the lorry did not possess valid driving licence as on
the date of the accident.
Respondent No.3, insurer of tempo has pleaded
that it has issued comprehensive policy and the same
was existing as on the date of the accident. It does
not cover the liability towards the driver, who is a
third party. The petition under section 163A of MV Act
is not maintainable. The charge sheet is filed against
the deceased and driver of the lorry, which is an
indication that there is fault on the deceased.
Respondent No.4, owner of goods tempo denied
the age, income of the deceased. The driver was
permitted to drive the tempo after verifying his license
and other documents. The lorry was parked in the
middle of the road and hence respondent Nos.1 and 2
are liable to pay compensation. The quantum of
compensation claimed by the claimants is exorbitant.
Hence, all the respondents sought for dismissal
of the petition. The respondent No.2, owner of lorry
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 claimants, in order to
prove their case, examined mother of the deceased
claimant No.1 as PW-1 and got exhibited documents
namely Ex.P1 to Ex.P15. On behalf of respondents,
two witnesses were examined as RWs-1 and 2 got
exhibited documents namely Ex.R1 to Ex.R3. 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 claimants has
contended that the claim petition is filed under Section
163A of the MV 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. The Tribunal
contrary to the said decision, has wrongly dismissed
the claim petition.
7. Per contra, the learned counsel for the
insurer of lorry and insurer of tempo does not dispute
the law laid by the Apex court in the case of Sunil
Kumar (supra).
8. Heard the learned counsel for the parties
and perused the records.
9. It is not in dispute that deceased died in
the road traffic accident occurred on 8.8.2011. the
claimants have filed the claim petition under Section
163A of the MV Act. The Apex court in the case of
Sunil Kumar (supra), has held that in the claim
proceedings filed under Section 163A of the MV 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. Hence, the
finding of the Tribunal that the deceased has
contributed to the accident is unsustainable. It is held
that the insurer of lorry as well as insurer of tempo
are directed to pay compensation to the claimants
equally.
10. In respect of quantum of compensation is
concerned, the claimants claim that the deceased was
working as driver and earning Rs.3,200/- per month.
As per schedule II of the Act, since the deceased was
aged about 19 years at the time of the accident, the
multiplier applicable to the age group of 15-20 years
is '16'. Out of monthly income of Rs.3,200/-, it is
appropriate to deduct 1/3rd towards personal expenses
and therefore, the monthly income comes to
Rs.2,133/-. Thus, the claimants are entitled to
compensation of Rs.4,09,536/- (Rs.2,133*16*12) on
account of 'loss of dependency'.
As per schedule II of the Act, the claimants are
entitled for compensation of Rs.2,000/- under the
head of 'funeral expenses' and Rs.2,500/- under the
head of 'loss of estate'.
10. Thus, the claimants are entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Loss of dependency 409,536
Funeral expenses 2,000
Loss of estate 2,500
Total 414,036
The claimants are entitled to a total
compensation of Rs.4,14,036/-.
The insurer of lorry as well as insurer of tempo
are directed to deposit the compensation amount
equally along with interest at 6% p.a. within a period
of four weeks from the date of receipt of copy of this
judgment.
Out of the said compensation amount, 50% shall
be kept in FD in any nationalized bank in the names of
both the claimants equally. Remaining 50% of the
amount shall be released in favour of the claimants
equally.
To the aforesaid extent, the judgment of the
Claims Tribunal is modified.
Accordingly, the appeal is allowed-in-part.
Sd/-
JUDGE
DM
