Chandershaker S/O Sidramappa ... vs Salauddin S/O Mohd. Nooradding
2022 Latest Caselaw 10010 Kant

                           1



            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

          DATED THIS THE 30TH DAY OF JUNE 2022

                        BEFORE

       THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
                 MFA No.33089/2013 (MV)

BETWEEN:

CHANDERSHAKER
S/O SIDRAMAPPA HANMASHETTY,
AGED ABOUT: 45 YEARS, OCC: COOLIE,
R/O VILLAGE NANDGAON, TQ. HUMNABAD,
DIST. BIDAR-585330.

DIED, BY HIS LEGAL REPRESENTATIVE
RACHAMMA
W/O CHANDERSHAKER HANMASHETTY,
AGED ABOUT: 43 YEARS, OCC: HOUSEHOLD,
R/O VILLAGE NANDGAON, TQ. HUMNABAD,
DIST. BIDAR-585330.
                                           ... APPELLANT
(BY SRI BASAVARAJ R.MATH, ADVOCATE)

AND:

1.     SALAUDDIN S/O MOHD. NOORODDING,
       AGED ABOUT: 40 YEARS, OCC: BUSINESS,
       R/O VILLAGE SHOP NO.3 AND 4, A-17,
       COOPERATIVE INDUSTRIAL ESTATE BALNAGAR,
       RANGAREDDY DISTRICT-509202.

2.     THE DIVISIONAL MANAGER OF
       NATIONAL INSURANCE CO. LTD.,
       OPPOSITE MINI VIDHAN SOUDHA,
                                  2



      BILGUNDI COMPLEX,
      GULBARGA-585102.
                                                 ... RESPONDENTS

(BY SMT. SANGEETA BHADRASHETTY, ADVOCATE FOR R2;
V/O DTD. 31.01.2014 NOTICE TO R1 IS DISPENSED WITH)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO
CALL FOR RECORDS AND MODIFY THE IMPUGNED JUDGMENT
AND AWARD DATED 26.09.2013 PASSED BY THE SENIOR
CIVIL JUDGE & MACT AT HUMANABAD IN MVC OLD
NO.112/2008 AND NEW NO.26/2011.

     THIS APPEAL COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-

                          JUDGMENT

This appeal is filed by the claimant challenging the

judgment and award dated 26.09.2013 passed by the Senior

Civil Judge and MACT, Humnabad in MVC No.26/2011 (old

No. 112/2008), whereby the Tribunal has dismissed the claim

petition.

2. For the sake of convenience, the parties herein

are referred as per the ranks occupied by them before the

Tribunal.

3. The brief facts leading to the case are that, the

deceased was the driver of lorry bearing Registration

No.AP.28/X.1791, which was proceeding towards Mumbai on

NH-9 road. At that time, when the lorry reached Kathepally

Village, the deceased dashed the said lorry to the Cannal side

of Culvert, thereby he sustained grievous injuries and he was

admitted in Surya Peth Hospital and later on he was shifted to

Osmania Hospital at Hyderabad, wherein he succumbed

because of injuries on 17.04.2008. Therefore, the mother of

the deceased filed a claim petition under Section 163(A) of the

Motor Vehicles Act,1988 ( 'MV Act' for short) claiming

compensation of Rs.8.00 Lakhs.

4. The respondent/Insurer has contested the petition

by filing written statement on the ground that, the accident

took place due to actionable negligence on the part of the

deceased himself and he was not possessing valid and

effective driving licence as on the date of accident, and as

such, claimant is not entitle for any compensation, and sought

for dismissal of the claim petition.

5. After assessing the oral and documentary

evidence, the Tribunal has dismissed the claim, by accepting

the contention of the Insurance Company that the claimant

ought to have filed a petition under Section 166 of the MV Act

rather than Section 163(A) of the MV Act.

6. Being aggrieved by the order of dismissal of the

claim petition by the Tribunal, this appeal came to be filed.

7. Heard the learned counsel for the appellant and

the learned counsel for the respondent No.2/Insurance

Company.

8. Learned counsel for the appellant contended that

the petition itself is filed under Section 163(A) of the M.V. Act

since the accident is by use of vehicle and hence, the claim

petition is maintainable. In support of his contention, he has

also placed reliance on a decision reported in 2018 ACJ

2161 [Shivaji and another Vs. Divisional Manger, united

India Insurance Co. Ltd. And others], wherein the Full

Bench of the Hon'ble Apex Court has clarified this issue by

observing as under:

"Motor Vehicles Act, 1988, section 163-A - Claim application - Negligence of victim - Claimants

filed claim under Section 163-A for death of the deceased in motor accident and Tribunal awarded compensation - Appeal by Insurance Company raising the defence of negligence of victim - High Court held that deceased driver was tort-feasor and responsible for causing the accident and set aside the order of Tribunal - Whether insurance company can raise the defence of negligence of victim in a claim filed under Section 163-A - Held: 'no' ; to permit a defence of negligence of the victim and/or to understand Section 163-A contemplating such a situation would be inconsistent with the legislative object behind introduction of the provision; permitting defence of negligence under section 163- A would bring the proceedings under Section 163-A at par with proceedings under Section 166, which would not only be self-contradictory but also defeat the legislative intention. [2018 ACJ 1 (SC) followed].

9. Hence, though the deceased was alleged to be a

tort-feasor, since the claim petition is filed under Section

163(A) of the MV Act, it is maintainable and the claimant, who

is the mother of the deceased, is entitled for compensation .

10. On this point only, learned counsel for the

appellant has also placed reliance on an unreported decision

of the Hon'ble Apex Court in Civil Appeal No.9694/2013

dated 24.11.2017 (reported in 2018 ACJ Page-

10)[United India Insurance Co. Ltd., Vs. Sunil Kumar

and Another]. In view of this decision of the Hon'ble Apex

Court, the petition under Section 163(A) is maintainable and

the negligence has no role to play, in this regard.

11. During the course of arguments it is submitted

that, as the Tribunal has not quantified the compensation, the

matter may be remanded. However, it is also alternatively

submitted that, since the law is settled, the statutory income

is already fixed and hence, this Court can itself calculate the

quantum and award compensation.

12. The claimant being the mother of the victim, in

her claim petition she has contended that, the deceased being

the driver, was earning Rs.3,300/- p.m.. Hence, considering

the statute, the income of the deceased is required to be

taken at Rs.40,000/- per annum. Since the deceased is aged

about 20 years, the multiplier '18' is applicable. As per the

Statute, 1/3rd of income is required to be deducted towards

personal expenses of the deceased. Hence, the loss of future

income would work-out to Rs.4,80,000/-

(Rs.40,000x18x2/3).

13. Further, the claimant is also entitled for

Rs.2,000/- as per the Statute towards funeral expenses. No

document has been produced to prove medical expenses.

Hence, the claimant is not entitled for any compensation

under the head of Medical Expenses. As such, the claimant

would be entitled for total compensation of Rs.4,82,000/-.

14. The Tribunal without considering all these

aspects, has dismissed the claim petition on wrong

information that the petition under Section 163(A) of the MV

Act is not maintainable.

15. Considering the facts and circumstances and also

the grounds urged in the appeal memorandum, the appeal

needs to be allowed-in-part and the claimant is entitled for

total compensation of Rs.4,82,000/- under the following

heads:

 Sl.    Particulars                        Amount (RS.)
 No.
  1     Loss of dependency                 4,80,000/
  2     Funeral expenses                      2,000/-
        Total                              4,82,000/-

16. In the result, I proceed to pass the following:

ORDER

i. The appeal is allowed-in-part.

ii. The judgment and award dated 26.09.2013 passed by the Senior Civil Judge and MACT at Humnabad, in MVC No.26/2011 (old No.112/2008) is set aside.

iii. The appellant/claimant is held entitled for total compensation of Rs.4,82,000/- with interest at the rate of 6% p.a. from the date of petition till its realisation.

iv. The Respondents- 1 & 2 are jointly and severally liable to pay compensation. But, the primary liability is fixed on the respondent No.2/Insurance Company.

v. Respondent No.2-Insurance Company is directed to deposit the entire compensation amount with interest accrued thereon. within Six weeks from the date of this judgment.

vi. On deposit, the 50% of the award amount with interest shall be kept in Fixed Deposit in any Nationalised Bank in the name of the appellant/claimant for a period of three years and the remaining 50% with accrued interest shall be released in favour of the appellant/claimant.

Sd/-

JUDGE

KGR*