Karnataka High Court

Balakrishna S/O Ganapati vs Maruti Narayan Nimbalkar on 10 November, 2021

Bench: Ravi V.Hosmani

  IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

      DATED THIS THE 10 T H DAY OF NOVEMBER, 2021

                          BEFORE

        THE HON'BLE MR.JUSTICE RAVI V.HOSMANI

                MFA No.22794/2012(MV)
                         C/W
               MFA CROB.No.100072/2019


IN M.F.A.No.22794/2012(MV)

BETWEEN:

THE DIVISIONAL MANAGER
RELIANCE GEN ERA L INSURAN CE CO. LTD.,
CTS # 472- 474, V.A. KALA BURGI S QUARE,
DESAI CROSS, DESHPANDE NAGAR,
HUBLI- 580029.

                                            ...APPELLANT

(BY SRI.NAGA RAJ C KOLLOORI , ADV OCATE)


AND


1 .   SHRI.BALAKRIS HNA GANA PATI KURA LE
      AGE: 43 YEARS , OCC: NIL,
      R/O: VYANKATESH NAGAR, AT: MUTAGA,
      TQ AND DIST: BELGAUM.

2 .   SMT.MANGAL BALA KRISHNA KURALE
      AGE: 39 YEARS , OCC: HOUS EHOLD,
      R/O: VYANKATESH NAGAR, AT: MUTAGA,
      TQ AND DIST: BELGAUM.
                               2




3 .   SHRI.MARUTI NARAYAN NIMBELKAR
      AGE: MAJOR, OCC: NOT KN OWN,
      R/O: H.NO. 40, NEKAR COLONY ,
      VIDYA NAGAR, AT: HUBLI, DIST: DHARWAD.

                                             ...RES PONDENTS


(BY SRI. VITTHAL S TELI , ADV OCATE FOR R1 AND R2)
(R-3 - S ERVED WITH NOTICE)


      THIS MFA IS FILED U/SEC. 173( 1) OF MV ACT, PRAY ING

TO CALL F OR RECORDS AND SET A SIDE THE JUDGM ENT AND

AWARD DATED 31.01.2012 PASS ED BY II ADDL. SENIOR CIVIL

JUDGE AND ADD L.MACT BELGA UM IN MVC NO.2319/2008 AND

TO PASS SUCH OT HER ORDERS WITH COSTS ETC.


IN MFA CROB.NO.100072/20019

BETWEEN

1.    BALAKRISHNA GA NAPATI KURA LE
      AGE: 50 YEARS , OCC: NIL,
      R/O: VYANKATESH NAGAR, AT: MUTAGA,
      DIST: BELGAUM.

2.    SMT.MANGAL BALA KRISHNA KURALE
      AGE: 50 YEARS , OCC: HOUS EHOLD WORK,
      R/O: VYANKATESH NAGAR, AT: MUTAGA,
      DIST: BELGAUM.
                                      ...CROSS OBJECT ORS

(BY SRI. VITTHAL S TELI , F OR CROS S OBJ ECTORS)
                               3




AND

1.    MARUTI NARAYAN NIMBELKAR
      AGE: MAJOR, OCC: NOT KN OWN,
      R/O: H.NO. 40, NEKAR COLONY ,
      VIDYA NAGAR, AT: HUBLI,
      DIST: DHARWAD.

2.    THE DIVISIONAL MANAGER
      RELIANCE GEN ERA L INSURAN CE CO. LTD.,
      CTS # 472- 474, V.A. KALA BURGI S QUARE,
      DESAI CROSS, DESHPANDE NAGAR,
      HUBLI- 580029.

                                              ...RES PONDENTS


(BY SRI.NAGA RAJ C KOLLOORI , ADV OCATE FOR R2)
(NOTICE T O R1 DI SPENSED WITH)



      THIS MFA CROB IN MFA NO 22794/ 2019 IS FILED UN DER

ORDER 41 RULE 22 OF CPC., 1908. PRAYING T O MODIFY THE

JUDGMENT     AND    AWARD    DATED     31.01.2012    IN    MVC

NO.2319/2008 PA SSED BY II ADDL. SENOR CIVIL JD UGE AND

ADDL.MACT, BELA GAVI.


      THIS APPEAL AND CROSS OBJECTI ON COMING ON F OR

HEARING-INTERLOCUTORY       A PPLI CA TION   THIS   DAY,   THE

COURT , D ELIVERED THE F OLLOWING:
                                     4




                                JUDGMENT

Challenging the judgment and award dated

31.01.2012 passed by II Addl. Senior Civil Judge and Addl.

M.A.C.T. Belagavi (for short, 'the Tribunal') in MVC No.

2319/ 2008 , this appeal is filed by the claimant seeking for

enhancement of compensation.

2. Though matters are listed for hearing

interlocutory application, they are taken up for final

hearing.

3. Brief facts as stated are that on 15.09.2008 at

about 9.00p.m., Deepak was riding motorcycle bearing

registration No.KA-25/S-5515 from Nilaji village towards

his Mutaga village at about 9.00 p.m. on Belgaum-

Bagalkot road within limits of Mutuga, an unknown vehicle

came from opposite direction and dashed to motorcycle.

In accident, Deepak sustained grievous injuries and was

admitted to KLE Hospital where he died during treatment

on 17.09.2008. Claiming compensation for his death his

parents filed claim petition under Section 163(A) of Motor

vehicles Act against owner and insurer of motorcycle.

4. Despite service of summons, owner did not

participate. He was placed exparte. On service of

summons, respondent No.2/insurer filed objections

denying age, occupation and income of deceased and

dependency of claimants. Insurer specifically denied

involvement of motorcycle in accident. It also denied that

deceased was having valid driving licence to ride

motorcycle and alleged violation of terms and conditions

of policy.

5. Based on pleadings, Tribunal framed following

issues:

1. Whether pe titio ners pro ve that deceased Deepak Balkrishna Kurale died in the allege d motor vehicle accident occurred out of the use of the moto rcycle bearing No .KA-25/ S-5515?

2. Whether the petitione rs are entitle d fo r compensation? If so, to what e xtent and from whom?

3. What order or award?

6. In order to substantiate their case, claimant

No.2 was examined as PW.1. Exhibits P.1 to P.8 were

marked. On other hand, respondents examined

investigating officer as RW1 and official of insurer as

RW2. Exhibits R1 was marked.

7. On consideration, Tribunal answered issue nos.1

and 2 in affirmative and issue no.3 by awarding

compensation of Rs.2,89,500/- and holding insurer liable

to pay same. Aggrieved by award, insurer is in appeal.

8. Sri.Nagaraj C. Kollori, leaned counsel for

appellant/insurer submitted that even as per complaint,

accident occurred due to negligence of some unknown

vehicle. Police investigation records do not indicate /

establish that insured was involved in accident. It was

further submitted that deceased was not having driving

licence as admitted by RW.1. It was elicited from RW.1

that Police have not mentioned in records about seizure of

vehicle involved in accident and it's release. It was

submitted that absence of such records would entail

drawing up of adverse inference that vehicle was not at all

involved in accident.

9. On the other hand, learned counsel Sri.Vittal S.

Teli for respondents/claimants submitted that admittedly,

claim petition is filed by parents of deceased under

Section 163A of Motor Vehicles Act. In petition under

Section 163A, claimants are not required to establish

negligence but have only to establish occurrence of

accident involving motorcycle. It was submitted that

complaint, FIR and charge sheet clearly mentioned

motorcycle on which deceased was riding and claim

petition is filed against owner/insurer of said vehicle.

Therefore, claim petition would be maintainable. Learned

counsel further drew attention of this Court to clause in

insurance policy / Ex.R1 which provided for assumption of

risk of 3 r d person riding motorcycle with permission of

owner. Relying upon decision of Hon'ble Supreme Court in

case of Dinesh Kumar J. Alias Dinesh J. Vs. National

Insurance Company Limited and others reported in

(2018) 1 SCC 750, learned counsel submitted that as

claimant's case as well as Police records would indicate

that accident occurred due to negligence of some unknown

vehicle, while deceased was riding insured vehicle, insurer

could not contend contributory negligence in order to

avoid liability.

10. From above submissions, occurrence of accident

in which Deepak, son of claimants died is not in dispute.

Issuance of policy and it's validity as on date of accident

is also not in dispute. Tribunal assessed compensation and

passed award against insurer. Insurer is in appeal

challenging award on liability while claimants have filed

cross objection seeking for enhancement. Therefore,

point that arise for consideration are:

1) Whether T ribunal was justified in passing award against the insurer?

               2)     Whether      claimants     are     entitled      for
                      enhance ment    of    compensation    as    sought
                      for?





      11.    Point     No.1:    This       is   a   claim    petition    under

Section 163-A.         As per provisions, claimants are required

to   establish     that    accident    occurred        involving     a   motor

vehicle.      In     order     to   establish        this    fact,   claimants

produced complaint, FIR, Spot panchanama, Motor Vehicle

Inspectors report, inquest panchanama, postmortem

report and charge sheet marked as exhibits P.1 to P.7

respectively. Ex.P.1/complaint reveals that complaint was

filed mentioning name of motorcycle on which deceased

was riding and same is reflected in Ex.P2/FIR and Ex.P.7

charge sheet also. Though, Ex.P.7 charge sheet is a 'C'-

summary charge sheet accepted by Trial Court for closing

prosecution proceedings. Same would not in any case be

helpful in establishing involvement of insured vehicle in

accident. Contents of Ex.P.4/Motor Vehicle Inspectors

report would reveal that vehicle was inspected on

23.10.2008 and extensive damage to motorcycle are

noted. Ex.P.4 would corroborate contents of Ex.P.1 and

Ex.P2 and Ex.P7 about involvement of insured vehicle.

12. Insofar as contention that deceased was not

having driving licence at time of accident, RW-1 stated in

his cross examination that he was informed by parents of

deceased that he was not having driving licence which is

also reiterated by RW.2 official of insurer. Admittedly, in

instant case, basis for claim is not on ground of

negligence. Police investigation records do not allege any

negligence on part of deceased. They indicate that

accident was due to negligence of unknown vehicle. Mere

non-possession of driving license by victim of an accident

would not be fatal to his case. Judgment of Apex Court in

Dinesh's case supra is also to said effect.

13. In view of above, point No.1 has to be answered

against appellant and in favour of claimants.

     14.    Point      No.2:        Insofar        as      quantum        of

compensation,       only    ground       on   which      enhancement      is

sought is that Tribunal deducted 50% towards personal

expenses of deceased and applied multiplier corresponding

to age of mother which would be contrary to II schedule.

In a claim petition under Section 163-A, the statute

provides for a structural formula for computation of

compensation. It provides for fixed deduction towards

personal expenses at '1/3'. It also provides for

application of multiplier corresponding to age of deceased.

Admittedly, age of deceased was 22 years. Multiplier

applicable would be 17. Therefore, compensation towards

loss of dependency would be Rs.3000 - 1/3 x 12 x 17

=Rs.4,08,000/-