Renuka vs Basawanni
2021 Latest Caselaw 3361 Kant

        IN THE HIGH COURT OF KARNATAKA
                DHARWAD BENCH

DATED THIS THE 21 S T DAY OF SEPTEMBER, 2021

                          PRESENT

  THE HON'BLE MR. JUSTICE P.B.BAJANTHRI

                              AND

      THE HON'BLE MR. JUSTICE M.G.S. KAMAL

              MFA No.23128/2013 (MV)
            C/w. MFA No.23127/2013 (MV)

 In MFA No.23128/2013:
 Between:

 Smt. Renuka
 W/o. Baswanni Hudali @ Harijan,
 Age 44 years, Occ: Household,
 R/o.: Hudli, Tq. & Dist.: Belgaum.
                                           ... Appellant
 (By Shri K.H. Bagi, Advocate)


 And:

 Shri Basawanni,
 Since deceased by his LRs.

 1.     Shri Baban
        S/o. Basawanni Hudali W Harijan,
        Age 25 years, Occ: Student,
        R/o.: H.No.212-A, MOria Bardez,
        North Goa - 403514.
                              :2:


2.   Sri Bharat
     S/o. Basawanni Hudali W Harijan,
     Age 21 years, Occ: Student,
     R/o.: H.No.212-A, MOria Bardez,
     North Goa - 403514.

3.   National Insurance Co. Ltd.,
     Div. No.10, Flat No.101-106,
     N1, BMC House, Connought Place,
     New Delhi-110 001,
     By its Authorised Signatory,
     Through Divisional Manager,
     Nationa Insurance Company Ltd.,
     Belgaum Division, Ramdev Galli,
     Belgaum.
                                             ... Respondents
(By Shri G.N. Raichur, Advocate for R3;
 R1 & R2 - served)


     This MFA is filed u/S.173(1) of M.V. Act, 1988 against
the Judgment and Award dated 29.11.2012, passed in MVC
No.1299/2012 on the file of the Presiding Officer, Fast Tract
Court-IV, Belgaum, partly allowing the claim petition for
compensation and seeking enhancement of compensation.


In MFA No.23127/2013:
Between:

Smt. Renuka
W/o. Baswanni Hudali @ Harijan,
Age 44 years, Occ: Household,
R/o.: Hudli, Tq. & Dist.: Belgaum.
                                                 ... Appellant
(By Shri K.H. Bagi, Advocate)
                              :3:


And:

Shri Basawanni,
Since deceased by his LRs.
1.    Shri Baban
      S/o. Basawanni Hudali W Harijan,
      Age 25 years, Occ: Student,
      R/o.: H.No.212-A, MOria Bardez,
      North Goa - 403514.

2.     Sri Bharat
       S/o. Basawanni Hudali W Harijan,
       Age 21 years, Occ: Student,
       R/o.: H.No.212-A, MOria Bardez,
       North Goa - 403514.

3.     National Insurance Co. Ltd.,
       Div. No.10, Flat No.101-106,
       N1, BMC House, Connought Place,
       New Delhi-110 001,
       By its Authorised Signatory,
       Through Divisional Manager,
       Nationa Insurance Company Ltd.,
       Belgaum Division, Ramdev Galli,
       Belgaum.
                                             ... Respondents
(By Shri G.N. Raichur, Advocate for R3;
 R1 & R2 - served)


     This MFA is filed u/S.173(1) of M.V. Act, 1988 against
the Judgment and Award dated 29.11.2012, passed in MVC
No.1300/2012 on the file of the Presiding Officer, Fast Tract
Court-IV, Belgaum, partly allowing the claim petition for
compensation and seeking enhancement of compensation.


     These appeals being heard and reserved for Judgment,
coming on for pronouncement of Judgment, this day,
M.G.S. Kamal, J., delivered the following:
                                    :4:


                           J U D G M E N T

1. The appeals in MFA Nos.23128/2013 and

23127/23013 are filed by the appellant namely

Smt.Renuka against the Judgment and Award dated 29 t h

November 2012, passed by the Presiding Officer, Fast

Track Court-IV, Belgaum (for short "the Tribunal").

2. The facts leading upto filing of the present

appeals briefly stated are that on 07.04.2009, the

deceased Bhoomi and Babita, the daughters of

Basawanni Bhimappa Harijan @ Hudali and the

appellant herein were proceeding towards Mapusa Goa

from Hudali along with their relative in a Maruti Alto

Car bearing registration No.GA-03/C-5239 driven by

father, Basawanni Bhimappa Harijan. When they came

near Chandgad on Belgaum Vengurla Road at about

2:30 p.m., the driver of the car lost control over the

vehicle and dashed to a roadside tree. Due to the

impact, the deceased and their father who was driving

the car sustained grievous injuries and succumbed to

the same.

3. Thereupon the appellant/petitioner being the

mother of the aforesaid Bhoomi and Babita filed claim

petitions under Section 163(A) of the M.V. Act claiming

compensation in a sum of Rs.10,00,000/- in respect of

the deceased Bhoomi in MVC No.1299/2012 and a sum

of Rs.20,00,000/- in respect of the deceased Babita in

MVC No.1300/2012.

4. It is contended that the deceased Babita was

a B.Com graduate, was earning a sum of Rs.5,000/- per

month and was contributing the same to the welfare of

the family. Respondent No.2-Insurance Company

contended that the aforesaid two claim petitions were

not maintainable as the insured was the father of the

deceased Bhoomi and Babita and the husband of the

petitioner, as such the insured cannot be indemnified

for his own fault and sought dismissal of the petitions.

5. The Tribunal based on the pleadings framed

issues recorded evidence and held that the death of the

deceased Bhoomi and Babita was on account road

traffic accident involving the Maruti Alto Car and

awarded a sum of Rs.50,000/- each in respect of the

claim made by the appellant in MVC Nos.1299/2012 and

1300/2012. Aggrieved by the aforesaid order, the

present appeals are filed seeking enhancement of

compensation.

6. The appellant in both the appeals has filed

applications in I.A.No.1/2021 under Order VI Rule 17

Read with Section 151 of CPC seeking to

amend/correct/convert the provisions of the claim

petitions from the one under Section 163A to Section

166 of the M.V. Act. In support of the applications, it is

contended that though the provision mentioned the

claim petitions is under Section 163A of the M.V. Act,

the income of the deceased claimed in the claim

petitions is in excess of Rs.40,000/- per annum as

prescribed under Section 163A of the M.V. Act. It is

further submitted that though the provision of law

mentioned in the claim petitions was Section 163A of

the M.V. Act and the matters were conducted under

Section 166 of the M.V. Act and the Tribunal has also

appreciated the materials, pleadings and evidence as if

the same have been filed under Section 166 of the M.V.

Act. That at the stage of appeals, the Insurance

Company has raised objections that since the claim

petitions were filed under Section 163A of the M.V. Act,

the enhancement of compensation cannot be granted. It

is further deposed that the petitioner had proved the

negligence in the accident as required under Section

166 of the M.V. Act and as such, it was necessary and

imperative to amend the claim petitions and to

insert/substitute the provision in the claim petitions as

Section 166 of the M.V. Act in the place of Section 163A

of the M.V.Act.

7. Learned counsel for the appellant in support

of the aforesaid application has relied upon the decision

of the Full Bench of this Court in the case of

GURUANNA VEDI AND ANOTHER vs. THE GENERAL

MANAGER, KARNATAKA STATE ROAD TRANSPORT

CORPORATION AND ANOTHER reported in ILR 2001

KAR 2879.

8. Learned counsel for the respondent-Insurance

Company filed statement of objections vehemently

opposing the applications filed for amendment. He

submitted that the amendment to the petitions would

change the nature and cause of action of the petitions

and that the amendment at this belated stage cannot

be permitted. In support of his contention, he relied

upon the decision of the Co-ordinate Bench of this

Court in the case of ORIENTAL INSURANCE CO. LTD.,

VS. SHARADA G. AND OTHERS reported in 2010 ACJ

977 and also specifically referred to the judgment of

the Hon'ble Apex Court in the case of DEEPAL

GIRISHBHAI SONI VS. UNITED INDIA INSURANCE

CO. LTD., reported in 2004 ACJ 934, which is referred

to at paragraph No.26 of the judgment of the Co-

ordinate Bench of this Court. Hence, seeks for dismissal

of the applications filed for amendment.

9. We have given our thoughtful consideration

to the arguments advanced by the learned counsel for

the parties and perused the records carefully. The only

question that would arise for our consideration in these

appeals are that:

"Whether the appellant in both the appeals has made out a case for amendment of the claim petitions?"

10. It is seen from the claim petitions filed by

the petitioner in the aforesaid matters before the

Tribunal that originally the claim petitions seem to have

been filed under Section 166 of the M.V. Act, which has

been later corrected by using whitener and altering the

provision as under Section 163A of the M.V. Act. The

aforesaid claim petitions however contain the pleadings

as mandatorily required to maintain the petition under

Section 166 of the M.V. Act, namely

assertion/allegations/averments regarding wrongful act

or negligence. The relevant portion of the paragraph

No.1 in MVC Nos.1299/2012 & 1300/2012 and

paragraph No.4 in MVC No.1299/2012 and paragraph

No.5 in MVC No.1300/2012, which are are extracted

hereunder:

"Paragraph No.1 in MVC Nos.1299/2012:

1. ...... Due to the impact, Kumari Bhoomi D/o. Basavanni Hudali @ Harijan sustained grievous fatal injuries and died on the spot. The accident has taken place due to the driving of the car bearing No.GA-03 C-5239 by its driver. The accident has taken place solely due to rash and negligent driving of the car by its driver and the driver of the car is the master of the accident. The Police have registered a case against the driver of car bearing No.GA-03 C- 5239 under Chandagadh PS Crime No.27/2009, dated 8/4/2009."

Paragraph No.1 in MVC Nos.1300/2012:

"1. ...... Due to the impact Kumari Babita D/o.Basavanni Hudali @ Harijan sustained grievous fatal inj uries and died on the spot. The accident has taken place due to the driving of the car bearing No.GA-03 C-5239 by its driver. The accident has taken place solely due to rash and negligent driving of the car by its driver and the driver of the car is the master of the accident. T he Police have registered a case against the driver of the car bearing No.GA-03 C-5239 under Chandagadh PS Crime No.27/2009, dated 8/4/2009."

Paragraph No.4 in MVC Nos.1299/2012:

4. The petitioner have suffered mentally and physically, financially. Therefore , the petitioner have claimed total amount of Rs.10,00,000/- as a compensation on account of death of Kumari Bhoomi D/o. Basavanni Hudali @ Harijan with an interest at the rate of 18% per annum from the date of accident from the respondents.

Paragraph No.5 in MVC Nos.1300/2012:

5. The petitioner have suffered financially and lost her dependency, future income. Therefore , petitioner have claimed total amount of Rs.20,00,000/- as a compensation on account of

death of Kumari Babita D/o. Basavanni Hudali @ Harijan with an interest at the rate of 18% per annum from the date of accident from the respondents."

11. The Full Bench of this Court in the case of

GURUANNA VEDI AND ANOTHER (Supra) at

paragraph No.37, it is held as under:

"37. Question No. 6: The only bar provided for exercising an option in the matter of filing a claim petition for compensation is to be found in Section 163B which states, 'where a person is entitled to claim compensation under Section 140 and Section 163-A, he shall file the claim under either of the said sections and not under both' . There is no prohibition in any other provision of the Act from switching over the claim made under Sections 166 to 163-A provided the accident took place on 14.10.1994 or thereafter because Section 163A came on the statute book only with effect from 14.10.1994, subject of course , to the claimants satisfying other requirements such as the out of income limit mentioned in the Second Schedule. Section 163 is a beneficial Legislation and provides for payment of compensation based on structured formula without requiring pleading or establishing that the death or permanent disability in respect of which the claim has been made was due to any wrongful act or negligence or default of the owner of the vehicle or vehicles concerned or any other person. Such a beneficial legislation has to be given a liberal interpretation. T herefore, we answer this question in the affirmative by holding that a claimant can move the Court for amendment of his claim petition filed under Section 166 to that of a petition under Section 163-A at any stage of the proceedings and it would be for the concerned Court to pass an order on that application in accordance with law."

12. Learned counsel for the respondent-Insurance

Company relying upon the decision in the case of the

SHARADA G. AND OTHERS (Supra) referring to

paragraph No.24 and particularly paragraph 26, which

is extracted hereunder submitted that the applications

cannot be allowed

"24. As already stated under Section 166 of the Act, the cause of action arises on the basis that there is a tort-feasor who on account of his negligence has caused injury or death and the entire basis of Section 166 is proof of negligence before awarding compensation. Per contra, under Section 163-A of the Act, the claimant need not proved the negligence on the part of any other person and can claim compensation on the basis of the Schedule II. Therefore, under Section 163-A the basis of the claim petition is not on negligence , but irrespective of negligence on the part of the owner of the vehicle or any other person been proved compensation can be sought. Therefore , Sections 166 and 163-A are as already stated mutually exclusive and the basis of the proceeding and the decision would be totally different, as the cause of action is also on a different footing in as much as negligence has to be proved under Section 166 before compensation is awarded whereas under Section 163-A negligence need not be pleaded or proved on the part of a tort-feasor. Hence when a claim petition is filed under Section 166 of the Act, in our view the same cannot be permitted to be converted to one under Section 163-A of the Act as it would amount to change in the basis of cause of action and as such the amendment is not permissible.

26. Further the Division Bench in the said case also referred to the decision of the Ape x Court in the case of Deepal Girishbhai Soni and held that the only persons whose annual income is upto Rs. 40,000/- can take the benefit of Section 163-A of the Act and all other persons are required to be dealt with in terms of Chapter XII of the Act and therefore , the T ribunal could not have allowed the claim petition under Section 163-A by scaling down the annual income from Rs. 1,20,000/- to Rs. 40,000/- p.a so as to bring the case within the purview of Section 163-A of the Act."

13. In our consideration, the aforesaid principles

are not applicable in the facts and circumstances of the

instant cases for the reason that firstly there is specific

pleading in the petitions already filed regarding

wrongful act and negligence as required for a petition

under Section 166 of the M.V. Act and secondly the

income and compensation claimed is in excess of cap

set in for the petition under Section 163-A of the M.V.

Act. When the pleadings are clear and the parties have

understood their case and conducted the same as one

under Section 166, no hardship and prejudice will be

caused, if the petitions are permitted to be amend by

merely correcting/inserting the Section 166 of the M.V.

Act in place of 163A of the M.V. Act. For the reasons

referred to above and for the aforesaid analysis, the

applications are allowed in both the appeals.

14. In view of the allowing of the applications,

permitting conversion of claim petitions from one under

Section 163-A of M.V. Act to Section 166 of M.V. Act,

we deem it appropriate to remit the matters to the

Tribunal for fresh consideration. Hence, the following:

ORDER

(i) The Judgment and Award dated 29 t h November 2012, passed in MVC Nos.1299/2012 and 1300/2012 by the Presiding Officer, Fast Track Court-IV, Belgaum are set aside.

(ii) The appellants are permitted to amend the claim petitions accordingly.

(iii) The appeals are remitted back to the Court of the Presiding Officer, Fast Track Court-IV, Belgaum for fresh consideration after providing opportunity to the appellant/petitioner to lead further evidence and examine additional witnesses, if any, and also to provide opportunity to Insurance

Company to lead rebuttal evidence in the matter.

(iv) The Presiding Officer, Fast Track Court-

IV, Belgaum is hereby requested to dispose of the matters within a period of six months from the date of receipt of the order.

       (v)   The   parties   are    directed   to   appear
             before    the    concerned        Court    on
             15.10.2021.




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