Meenaxi W/O Yallappa Pujari vs Yallappa S/O Mudakapa Pujari And ...
2022 Latest Caselaw 7852 Kant

                               1


             IN THE HIGH COURT OF KARNATAKA
                    KALABURAGI BENCH

           DATED THIS THE 1ST DAY OF JUNE 2022

                           BEFORE

       THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR


                  MFA No. 33095/2013 (MV)

BETWEEN:

Meenaxi W/o Yallappa Pujari,
Aged about 25 years,
Occ: Household work,
R/o Matyal, Tq. B.Bagewadi,
Dist. Bijapur.
                                                .....Appellant
(By Sri.Sanganagouda V.Biradar, Advocate)

AND:

1.     Yallappa S/o Mudakappa Pujari,
       Aged about 30 Years,
       Occ: Business,
       R/o Matyal, Tq. B.Bagewadi,
       Dist. Bijapur-586 101.

2.     The Branch Manager,
       United India Insurance Company Ltd.,
       NDA Road, Opp. Malwadi Bus-Stop,
       Dudane Building, Warje Malwadi,
       Pune-411 052.
       Through the Divisional Manager,
       United India Insurance Co. Ltd.,
       Bijapur-586 101.
                                              .....Respondents
(By Sri.Sanganabasav B.Patil, Advocate for R1;
 By Sri.Manvendra Reddy, Advocate for R2)
                                2


      This MFA is filed under Section 173(1) of the Motor
Vehicles Act, praying to set aside the judgment and award
passed in MVC No.1120/2011 dated 04.10.2012 on the file of
the Motor Accident Claims Tribunal & Fast Track Court-I/II
Bijapur, and to allow the appeal by awarding compensation as
claimed in the claim petition.
      This appeal coming on for Hearing, this day, the court
delivered the following:

                         JUDGMENT

This appeal is filed under section 173(1) of the Motor

Vehicles Act, 1988 ('M.V. Act' for short) challenging the

judgment and award dated 04.10.2012 passed by the Motor

Accident Claims Tribunal and Fast Tract Court-I/II, Bijapur

(Tribunal' for short) in MVC No.1120/2011, dismissing the

claim petition filed by the petitioner/claimant under Section

163A of the MV Act.

2. For the sake of convenience, the parties herein

are referred as per the ranks occupied by them before the trial

Court.

3. The brief facts of the case are that, on 22.11.2010

while the deceased Nandini was sitting in the car bearing

Registration No.MH-12-DG-7306 and at 5.30 p.m., on

Nagaradninni-Asangi road, near Nagaradinni stream, the

driver of the said car has got down for answering the nature's

call and at that time, due to melting of wires, fire was broken

in engine and within a span of time the fire was caught all

over the car. As such, the car was completely burnt and the

deceased Nandini sustained burn injuries and she died on the

way to the hospital. The deceased was aged about four years

old baby and the petitioner has lost her loving daughter.

Hence, the claimant has filed claim petition under Section

163(A) of the MV Act claiming compensation of Rs.5,00,000/-

on the ground that the death is by use of the vehicle.

4. The Respondent No.2-Insurer has denied the claim

on various grounds and disputed the liability.

5. The Tribunal has dismissed the claim petition on

the ground that the vehicle was not involved in the accident

and the respondents are not liable to any compensation.

Being aggrieved by this judgment and award, the

appellant/claimant has filed this appeal.

6. Heard the learned counsel for the appellant and

the learned counsel for Respondent No.2-Insurer. Perused the

records.

7. Learned counsel for the appellant would contend

that the Tribunal has lost sight of the fact that the death of

the minor girl is because of the use of the vehicle when she

was sitting in the vehicle and the Tribunal has lost sight of

that aspect and has erroneously dismissed the claim petition.

He would also contend that the Tribunal has not calculated

any quantum and hence, he would seek for allowing the

appeal by awarding compensation of Rs.5,00,000/- to the

appellant/claimant.

8. Per contra, learned counsel for Respondent No.2-

Insurer would support the judgment and award of the

Tribunal.

9. Having heard the arguments of the learned

counsels on both sides and perusing the records, it is evident

from the records that the victim was travelling in the

offending Car and the said car caught fire because of short-

circuit in engine and the victim sustained burn injuries and

succumbed on the way to the hospital. As the death is due to

use of the alleged vehicle, a claim petition came to be filed

under Section 163(A) of the MV Act. The Section 163(A) of

the MV Act specifically states that, on account of death,

permanent injury or injuries arising due to accident arising use

of the vehicle, the claimants are entitled for compensation.

Admittedly, in the instant case, the vehicle was involved in the

accident, though it is not due to rash and negligent driving on

the part of the driver of the vehicle, but it is due to some

mechanical defect, which has resulted in causing fire in the

vehicle. Hence, since cause of accident is due to use of the

vehicle itself, the claimant is entitled for compensation, as

petition is filed under Section 163(A) of MV Act.

10. Learned counsel for the appellant would submit

that the matter may be remanded to the Tribunal for

calculation of compensation. However, it is to be noted here

that the deceased is only a minor child of four years. In the

decision of the Hon'ble Apex Court reported in (2014) 1 SCC

244 (Kishan Gopal and Another Vs. Lala and Others),

wherein the victim who was aged about 10 years, has

awarded compensation of Rs.5,00,000/-. Further, in Special

Leave Petition No.5311/2019 (Kurvan Ansari Alias

Kurvan Ali & Another Vs. Shyam Kishore Murmu &

Another), the Apex Court has awarded compensation of

Rs.4,70,000/- in the case of death of a minor aged about 7

years. Under these circumstances, looking to the facts and

circumstances, the claimant is entitled for Rs.4,70,000/- as

compensation on account of death of the minor child- Nandini.

11. It is an undisputed fact that the alleged vehicle

was insured with Respondent No.2 and the policy is also

covered the risk of the inmates as additional premium was

paid. The Ex.R1-Insurance Policy, which is produced by the

Insurance Company itself would clearly establish that the

additional premium of Rs.1,400/- for covering the risk of

four passengers is collected. Under these circumstances, when

Respondent No.2-Insurance Company has collected additional

premium for covering the liability of four passengers, the

insurance company cannot be exonerated from paying

compensation and the compensation is to be paid by the

Respondent Nos. 1 & 2, as liability is joint and several. As

such, the appeal needs to be allowed and accordingly, I

proceed to pass the following:-

ORDER

i) The appeal is allowed in part. The claimant is held entitle for total compensation of Rs.4,70,000/- with interest at 6% pa., from the date of petition till the date of realisation of the entire claim amount.

       ii)    The    primary      liability     is      fastened     on
              Respondent        No.2-Insurer.             Respondent

No.2-Insurer is directed to pay the entire compensation with accrued interest thereon within six weeks from the date of receipt of a copy of this judgment.

iii) The claimant is not entitled for interest for the delayed period of 691 days in filing this appeal.

Sd/-

JUDGE

KGR*