Karnataka High Court
Uday Achuta Kodiya Yane Mahale, vs United Insurance Co. Ltd., on 20 September, 2021
Author: Rajendra Badamikar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF SEPTEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
MFA NO.24171/2011 (MV)
Between:
Uday Achuta Kodiya Yane Mahale,
Age:29 years,
Occ:now nil, formerly barber & private service
R/o Duggumane, Tq:Sirsi
Dist:Karwar.
...Appellant
(By Sri.Vishwanath Hegde, Advocate)
AND:
1. United Insurance Co., Ltd.,
General Manager, Branch Office,
Modi Complex, Hospet road,
Sirsi, Dist:Karwar.
2. Manjunath R Naik,
Owner of Bajaj CT 100,
Occ:Business R/o Hulekal,
Tq:Sirsi, Dist:Karwar.
...Respondents
(By Sri.S.S.Joshi, Advocate for R1,
R2 served)
This Appeal is filed under Section 173(1) of M.V.Act,1988,
against the judgment and award dated 14.10.2010 passed in
MVC No.91/2007, on the file of the Presiding Officer, Fast Track
Court, Sirsi, dismissing the petition filed under Section 163A of
MV Act.
2
This appeal having been heard and reserved for judgment
on 13.09.2021 coming on for pronouncement of judgment this
day, the Court delivered the following:
JUDGMENT
This appeal is filed by the claimant under Section
173(1) of MV Act challenging the judgment and award
passed in MVC No.91/2007 dated 14.10.2010 on the
file of the Fast Track Court, Sirsi (hereinafter referred
to as 'the Tribunal' for short) whereby the Tribunal has
rejected the claim by dismissing the appeal and
prayed for allowing the MFA by awarding the
compensation.
2. The parties herein are referred with the
ranks occupied by them before the trial Court.
3. The factual matrix leading to the case are
that, the appellant is a barber by profession and was
also working under respondent No.2. On 05.11.2006,
at about 11.30 a.m., in Ganasin kani village road
while he was proceeding on a Bajaj CT 100 vehicle
bearing No.KA-31/K-3971 it met with accident and he
sustained grievous injuries over the head and other
parts of the body. Then he has taken treatment in
Government Hospital and later on shifted to Kasturba
Hospital, Manipal and he was inpatient till 14.12.2006
and spent Rs.86,000/- towards treatment and medical
bills. That he has filed the claim petition claiming
compensation and he has got examined himself as
Pw.1 and placed reliance on Ex.P1 to P57. The vehicle
was insured with respondent No.1. Though the
petition was initially filed under Section 166 of MV Act,
subsequently, it was converted under 163A of MV Act
by way of amendment. However, the tribunal has
rejected the claim petition on the ground that
petitioner himself was rash and negligent and further
his income does not fit within the parameters. Being
aggrieved by this judgment the appellant has filed this
appeal.
4. Heard the arguments advanced by learned
counsel for the appellant and the learned counsel for
the respondent No.1. Respondent No.2 is
unrepresented.
5. Learned counsel for the appellant would
contend that when the Court has allowed the
amendment and when he scaled down his income by
bringing his annual income of Rs.40,000/-, the
tribunal was not justified in rejecting his claim by
making observation that it is impermissible. He would
also contend that scaling down of the income and
conversion of the petition under Section 166 to 163A
of MV Act is permissible and it is a social beneficial act
and hence, strict proof is not required. Hence, he
would contend that the impugned judgment may be
set aside and sought for allowing the petition by
awarding the compensation.
6. Per contra the learned counsel appearing
for respondent-insurer has opposed the petition on
the ground that though the petition was got amended
by scaling down the income and by converting it under
Section 163A of MV Act, however, the evidence itself
disclose that annual income of the petitioner is more
than Rs.40,000/- and hence, the petition is not
maintainable and he would contend that the
admissions given by the claimant cannot be taken
away and though he technically scaled down which is
not permissible but the evidence again disclose his
higher income and as such the petition is liable to be
dismissed. Hence, he would contend that trial Court is
justified in rejecting the claim petition and sought for
dismissal of the appeal.
7. Having heard the arguments and perusing
the records, it is undisputed fact that the petitioner
has initially filed the petition under Section 166 of MV
Act, but after examination and cross examination of
Pw.1 he has got it amended under Section 163A of MV
Act by reducing the monthly income from Rs.4,000/-
p.m., to Rs.3,200/-. Whether rightly or wrongly the
said amendment was allowed. The petitioner has
disclosed his profession as Barber and private service
under respondent No.2. Interestingly on perusal of the
petition, it is evident that he did not specifically admit
that accident is because of his actionable negligence
and he never assert that he was the rider but simply
asserts that the vehicle met with accident and he
suffered injury. However, during the cross
examination it is elicited that he himself was the rider
of the motorbike and the accident was because of his
actionable negligence. Apart from that the records
also disclose that the present claimant/appellant
himself was charge sheeted by the investigating
agency. The said charge sheet is not challenged or set
aside. Hence, it is evident that prima-facie there is
material evidence to show that accident is because of
the actionable negligence on the part of the present
petitioner.
8. In his examination in chief Pw.1 initially on
07.10.2009 stated that his income is Rs.4,000/- p.m.,
He was subjected to cross examination in this regard.
He has also admitted that he was working under 2nd
respondent. He has given further evidence wherein he
has scaled down his income from Rs.4,000/- to
Rs.3,200/- p.m., But though he has scaled down is
monthly income from Rs.4,000/- to Rs.3,200/- p.m.,
his cross examination completely falsify this defence.
In his cross examination he admitted that he is
getting salary from the 2nd respondent to the tune of
Rs.3,000/- and he is earning Rs.120/- per day from
the profession of barber. This part of the cross
examination reads as under:
£À£Àß PËëjPÀ ªÀÈwÛ¬ÄAzÀ £À£ÀUÉ ¥Àæw¢£À gÀÆ.200
C®è DzÀgÉ gÀÆ.120-00 DzÁAiÀÄ EzÉ. 2£ÉÃ
JzÀÄgÀÄzÁgÀ £À£ÀUÉ wAUÀ½UÉ CAzÁdÄ gÀÆ.3,000-00
PÉÆqÀÄwÛzÀÝ. ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä £Á£ÀÄ wAUÀ½UÉ
gÀÆ.3,200-00 DzÁAiÀÄ«vÀÄÛ CAvÁ ¸ÀÄ:¼ÀÄî
ºÉüÀÄwÛzÉÝÃ£É CAzÀgÉ ¸ÀjAiÀÄ®è.
If this version is taken in to consideration,
monthly income of the claimant-Pw.1 would be
Rs.3000+3600(120*30) = 6600*12 = 79,200/-.
Hence, his annual income will be Rs.79,200/- as per
his own admission.
9. The petition under Section 163A of the MV
Act is maintainable only if the annual income is less
than Rs.40,000/-. The learned counsel for the
appellant would contend that in view of the escalation
in the prices, Court should consider this aspect, but
that ground cannot be accepted as it is a statutory
limitation fixed by the statute.
10. Learned counsel for the appellant has
placed reliance on the decision reported in 2002 3
ACC 350 in the case of Guruanna Vadi vs. General
Manager, Karnataka State Road Transport
Corporation and argued that as per the principles
enunciated in the said decision in a case the person
who with higher income notionally brings down his
income to Rs.40,000/- in order to present his claim
petition under Section 163A of MV Act, same is
permissible. However, in paragraph No. 38 of the
judgment while answering question No.6, the Hon'ble
Apex Court has held that a claimant during the
pendency of the proceedings at the original or
appellate stage can amend his claim petition made
under Section 166 of MV Act to a petition under
Section 163A of MV Act provided he satisfies other
conditions such as income factor etc., If this is taken
in to consideration, it is evident that though the
petition under Section 166 of MV Act can be amended
to petition under Section 163A of MV Act, it depends
on the income which is a material factor to be proved
on the basis of the evidence. In the instant case,
admittedly, the cross examination of Pw.1 after
amendment itself disclose that he was getting daily
income of Rs.120/- from the profession of Barber and
further he was being paid Rs.3,000/- p.m., by
respondent No.2. Hence, the annual income is more
than Rs.40,000/- as per his own admission and
though he has notionally brought it for conversion, he
did not withstand the cross examination in this regard
and he failed to satisfy the condition regarding the
income factor as observed while answering question
No.6 by the Hon'ble High Court in the above cited
decision. Infact the principles enunciated in the above
sited decision does not help the appellant and it would
on the contrary help the respondent No.1.
11. Learned counsel for the appellant has
further placed reliance on the decision reported in ILR
2007 Kar 28 in the case of United India Insurance
Co. Ltd. and Others vs. Anitha and Others. But
the facts and circumstances are entirely different and
it is clearly observed in the said decision that tribunal
could not have allowed the petition as if it was under
Section 163A of MV Act by scaling down the annual
income of Rs.1,20,000/- to Rs.40,000/- so as to bring
the case within the purview of Section 163A of MV
Act.
12. He has further placed reliance on the
decision reported on AIR 2019 SC 994 in the case of
Sunita and Ors. Vs. Rajasthan State Road
Transport Corporation and Ors. It is argued that
standard of proof is based on preponderance of
probability. He has invited the attention of this Court
to paragraph No.20 in this regard. But the said facts
are entirely different. There is no dispute in the civil
case, the standing proof is based on preponderance of
probability and in case of criminal cases, it is beyond
all reasonable doubt. The admission given by Pw.1 in
his cross examination cannot be ignored and if they
are ignored then virtually there is no need for cross
examination.
13. The learned counsel has further placed
reliance in MFA No.4493/2015 in the case of The
Claim Manager, Future General India Insurance
Co. Ltd., vs. Future General India Insurance Co.
Ltd., But in the said case the income of the deceased
was taken at Rs.3,300/- p.m., and hence, the annual
income was Rs.39,600/- and hence, the petition under
Section 163A of the MV Act was entertained and
petition was allowed. But in the instant case, though
the income was scaled down to Rs.36,000/-, the
evidence and admission given by Pw.1 itself disclose
that his income is more than Rs.50,000/- p.a., Hence,
it is evident that only for the purpose of petition he
has scaled down his income but there is no reduction
of the income. Even he has not scaled down is day
today income in this regard. Hence, the principles
enunciated in the above cited decision does not come
to the aid of the appellant in any way.
14. He has further placed reliance on the
decision reported in 2009(3) ALL MR (JOURNAL)
53 (KARNATAKA HIGH COURT) in the case of New
India Assurance Co. Ltd. Vs.Abdul Bhasheer Alias
Basheer & Ors., wherein it is held scaling down is
permissible.
15. He has further placed reliance on the
decision of the Karnataka High Court reported in 2004
2 ACC 534 in the case of Sulochana vs.Karnataka
State Road Transport Corporation. But the facts of
the said cases are entirely different in the said case,
the evidence itself establish that income was less than
Rs.40,000/- p.a., and hence, the scaling down of the
income was allowed and evidence was appreciated.
But in the instant case, no such evidence is
forthcoming.
16. On the contrary, the learned counsel for
respondent No.1 has placed reliance on the decision of
the Division Bench of this Court reported in ILR 2007
Kar 4488 in the case of Bangalore Metro
Transport Corporation vs. Lakshmamma and
Others, wherein the Division Bench of this Court has
observed as under:
1. BMTC has filed this appeal
challenging the Judgment and award
passed by the MACT, Bangalore dated:
10-6-2002 in MVC 2110/1999.
Respondents were the claimants before
the tribunal. Originally claim petition was
lodged by them under Section 166 of MV
Act claiming compensation on account of
the death of Hanumanna alias Ramanna
who died in road traffic accident on 28-
10-1998 at about 7-30 a.m. near
Corporation Bus-stand, deceased was 51
years and drawing salary of Rs. 4090/-.
Appellant-BMTC contested the case
denying the accident. Later on
amendment was sought by the claimants
seeking permission of the court to convert
claim petition from provisions of Section
166 of MV Act to Section 163-A of the MV
Act restricting the income at Rs. 40,000/-
per annum. The tribunal though held that
deceased was annually getting Rs.
51,804/- restricting the income to Rs.
40,000/- awarded compensation of Rs.
3,02,833/-. This judgment and award is
called in question in this appeal.
2. We have heard the counsel for
both the parties.
3. It is not in dispute that deceased
was a sweeper by profession and was an
employee of the corporation of City of
Bangalore and his gross salary was Rs.
4342/- and not salary was Rs. 4179/-.
Ex.P-6 is the salary certificate. By looking
into Ex.P-6, considering the pleadings of
the claimants, we are of the opinion that
claim petition under Section 163-A of the
MV Act was not maintainable. Claim
petition under Section 163-A is applicable
to the person whose income is less than
Rs. 40,000/- per annum. Tribunal has no
power to restrict the income of the
claimant or deceased as the case may be
to Rs. 40,000/- to bring the petition
within the purview of Section 163-A of the
MV Act. Section 163-A of the MV Act is
enacted to give benefit to particular class
of people whose income is less than Rs.
40,000/- per annum. Therefore, when a
person is having income of more than Rs.
40,000/- in order to get benefit under
Section 163-A of the MV Act, cannot
maintain a petition by restricting his
income to Rs. 40,000/- per annum.
Therefore, we are of the opinion that
judgment and award of the tribunal has to
be set aside and we have to direct the
tribunal to consider the case of the
claimants under Section 166 of the MV
Act.
4. In the result, this appeal is
allowed. Judgment and award of the
tribunal are hereby set aside. Matter is
remanded to the tribunal for fresh
consideration and dispose of the claim
petition treating it under Section 166 of
the MV Act. Amount in deposit is ordered
to be sent to the tribunal. If any amount
is drawn by the claimants, same shall be
subject to fresh outcome by the tribunal
and out of the amount deposited by the
BMTC if any amount is lying with the
tribunal, same shall be invested in any
nationalized bank in fixed deposit for a
period of one year and the same shall be
released subject to the outcome of the
decision of the tribunal.
17. He has also placed reliance on the Division
Bench decision reported in 2010 ACJ 977 in the case
of Oriental Insurance Co. Ltd., vs. Sharada G. and
others. In view of the decisions, it is evident that
when a person is having income more than
Rs.40,000/- p.a., he cannot maintain a petition under
Section 163A of MV Act. Though the income can be
scaled down but as per the decision reported in
Guruanna Vadi of this Court, it is permissible in case
the claimant satisfies the other conditions such as the
income factor etc., But in the instant case, the
evidence itself disclose that the income of the claimant
is more than Rs.50,000/- and though he has
technically scaled down the income by making
amendment, in his cross examination he has admitted
that his income is more than Rs.40,000/-. That
admission cannot be ignored. Admittedly when his
income is more than Rs.40,000/- he cannot maintain
the petition under Section 163 of MV Act. The accident
is because of his negligence and he was rash and
negligent as per the charge sheet submitted against
him. Further the evidence on record disclose that his
income is more than Rs.40,000/-. As such question of
he maintaining any petition under Section 163A of MV
Act does not arise at all. Hence, the appeal is devoid
of any merits and needs to be rejected. The tribunal
has considered this aspect and considering the
admissions given by the appellant has rightly
dismissed the appeal holding that the petition is not
maintainable under Section 163A of MV Act, in view of
the fact that annual income is more than Rs.40,000/-.
As such the appeal is devoid of any merits and needs
to be rejected.
Accordingly, I proceed to pass the following:
ORDER
The appeal is rejected.
Sd/-
JUDGE
NS
