The Legal Manager vs Byregowda M
2022 Latest Caselaw 7986 Kant

                             1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 02ND DAY OF JUNE, 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

              M.F.A.NO.2884/2014 (MV)

BETWEEN:

THE LEGAL MANAGER,
BAJAJ ALLIANZ GENERAL
INSURANCE COMPANY LIMITED,
GROUND FLOOR, NEW MISSION ROAD,
NEAR BANGALORE STOCK EXCHANGE,
BANGALORE-560027.

NOW AT BAJAJ ALLIANZ
GENERAL INSURANCE CO.LTD.,
REGIONAL OFFICE, GOLDEN HEIGHTS,
4TH LEVEL, NO.1/2, 59TH CROSS,
4TH "M" BLOCK, RAJAJINAGAR,
BANGALORE-560010.
BY IT'S MANAGER
                                         ... APPELLANT

(BY SRI O.MAHESH, ADVOCATE APPEARING THROUGH V/C)

AND:

1.     BYREGOWDA M.
       AGE 54 YEARS,
       S/O LATE MARIYAPPA,
       DEAD BY HIS LR'S

1 (A) LAKSHMIDEVI,
      AGED 40 YEAR
      W/O. LATE BYREGOWDA M.,
                          2


1(B) MASTER M. GANESH,
     AGED 22 YEAR
     S/O LATE M. BYREGOWDA,

     BOTH ARE RESIDING AT NO.651,
     16TH MAIN, 4TH BLOCK, NANDINI
     LAYOUT, BANGALORE-560096.

2.   A.V. SHOBHA, MAJOR,
     D/O SHIVAKUMAR,
     HOLALU, HASSAN TALUK & DIST.
                                     ... RESPONDENTS

(BY SRI KENCHAPPA, ADVOCATE FOR R2, REPRESENTED
AS LR OF DECEASED R1, RANKED R1(A),
R1 (A & B)- ARE SERVED,R1(B) BROUGHT ON RECORD AS
LR OF DECEASED R1,
R3-NOTICE HELD SUFFICIENT V/O DT:28-04-2016
RANKED AS PER AMENDED APPEAL MEMO DT:19.07.2019)


      THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT    AGAINST      THE    JUDGMENT   AND     AWARD
DATED:28.02.2014 PASSED IN MVC NO.2707/2012 ON
THE FILE OF XXI ADDITIONAL SMALL CAUSES JUDGE AND
XIX ACMM, MEMBER, MACT, BANGALORE, AWARDING
COMPENSATION OF RS.4,31,172/- WITH INTEREST @ 6%
P.A. FROM THE DATE OF PETITION TILL DEPOSIT AND
ETC.,

     THIS M.F.A. COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:



                  JUDGMENT

The present appeal is filed by the appellant-

Insurance Company challenging the judgment and

award dated 28.02.2014 passed in

MVC.No.2707/2012 by XXI Addl. Small Causes Judge

and XIX ACMM, Member, MACT, Bangalore.

2. Brief facts of the case are as under:

On 28.02.2012 the deceased was riding the

motor cycle bearing Reg.No.KA-02-HN-5138 from

Nandini Layout to Dr.Ambedkar Engineering College,

Nagarabhavi Ring Road. At that time, the driver of

Canter bearing Reg.No.KA-21-6772 suddenly drove

the same in a rash and negligent manner at Laggere

Ring Road Bridge, Opp.Krishna Bhavan Hotel, the

deceased in the process of avoiding the said vehicle,

the mirror of the motor cycle touched against Canter

vehicle and deceased fell down along with motor cycle

and sustained multiple fatal injuries. He died on the

way to the hospital. The claimants who are the

parents of the deceased have filed the claim petition

under Section 163-A of the Motor Vehicles Act, 1989,

(hereinafter referred to as "the Act" for short) before

the Tribunal claiming compensation.

3. Learned counsel for the appellant -

Insurance Company submitted that the deceased was

riding the motorcycle in a rash and negligent manner

and died in the accident. Therefore, after investigation

the police have filed the charge sheet against the

deceased himself. Therefore, the claim petition filed

under Section 163-A of the Act is not maintainable.

Further submitted that the deceased was riding the

motorcycle by not wearing helmet on his head, but

had kept the helmet on his left hand. Under these

circumstances, the accident has occurred. Therefore,

not wearing helmet, but keeping the same in hand

shows the negligence on the part of the deceased,

which is proved by R.W.1 who is the witness to the

accident. P.W.1 also during the course of cross-

examination has admitted that the deceased who is

his son was riding the motorcycle by keeping the

helmet on his left hand and not wearing the helmet on

his head. Therefore, it proves negligence on the part

of the deceased itself and due to his negligence, the

accident has occurred. Under these circumstances, the

claim petition is not maintainable.

4. Furthermore, P.W.1 being petitioner No.1

father of the deceased cannot maintain claim against

his own insurer of the motorcycle. Therefore, the

claim petition is not maintainable. Hence, the Tribunal

without considering all these factors has wrongly

allowed the claim petition, which needs interference

by this Court.

5. Further, the learned counsel for the

appellant-Insurance Company submitted that when

the petition was filed under Section 163-A of the Act,

but the income of the claimant was taken at

Rs.10,000/- per month, under these circumstances,

the claim petition under Section 163-A of the Act is

not maintainable. Even though, the petition later on

came to be amended by restricting the income to an

extent of Rs.40,000/- per annum, but initially the

claimants had filed the claim petition showing the

income of the deceased at Rs.10,000/- per month,

which shows that by making amendment by the

claimants is nothing, but malafide one so as to make

the claim petition maintainable. This is not permissible

under the eye of law. Therefore, even if the income of

the deceased is restricted to Rs.40,000/- per annum

by way of amendment to the claim petition, but the

fact is that initially the income was claimed at

Rs.10,000/- per month. Hence, the petition is not

maintainable. Further submitted that P.W.1 who is the

father of the deceased has deposed that, even after

amendment of petition, during the course of his

evidence, has deposed that the deceased was earning

income of Rs.10,000/- per month. Therefore, even

after amendment to the claim petition regarding the

income, but thereafterwards during trial, P.W.1 had

deposed that the deceased was earning Rs.10,000/-

per month. Therefore, under these circumstances

also, the claim petition filed under Section 163-A of

the Act is not maintainable. Further submitted that

even the Tribunal has no power to restrict the income

to Rs.40,000/- per annum and award composition.

Therefore, prays to allow the appeal by setting aside

the judgment and award passed by the Tribunal.

6. On the other hand, learned counsel for

respondent No.2 who is the mother of the deceased

vehemently argued that the claim petition is filed

under Section 163-A of the MV Act and therefore, the

rash and negligent aspect need not be pleaded and

established. Therefore, the claim petition is very much

maintainable. Even if the accident is caused due to the

rash and negligent on the part of the deceased

himself, further the income at Column No.6 mentioned

in the claim petition has got amended by restricting to

Rs.40,000/- per annum, therefore, the claim petition

filed under Section 163-A of the Act is maintainable.

Further submitted that, even though, P.W.1 being the

father of the deceased had deposed that the deceased

was earning Rs.10,000/- per month, but the Tribunal

has correctly restricted the income to Rs.40,000/- per

annum by considering the amendment made in the

petition. Therefore, the Tribunal has correctly

calculated the quantum of compensation and

accordingly, awarded the compensation, which needs

no interference. Hence, prays to dismiss the appeal by

confirming the judgment and award passed by the

Tribunal.

7. In the present case, the claim petition is

filed under Section 163-A of the Act. Exs.P.1, P.2 and

P.3 are the FIR, Complaint and charge sheet and all

these documentary evidence prove that the deceased

himself was rash and negligent in riding the motor

cycle and he died in the accident. Ex.P.3 is the charge

sheet, which was filed against the deceased himself.

Therefore, the charge sheet is filed on the deceased

himself for the rash and negligent riding of motor

cycle. Therefore, under these circumstances, the claim

petition is filed under Section 163-A of the Act.

8. Considering the submission made by the

learned counsel for the appellant-Insurance Company

that the deceased has kept his helmet on his right

hand without wearing on his head, which grossly

amounts to negligent on the part of the deceased

himself. But as per the police investigation and charge

sheet, it is found out that the deceased himself was

rash and negligent in causing the accident and died in

the accident. Therefore, under these circumstances,

the claim petition filed under Section 163-A of the Act

is maintainable or not is to be considered.

9. Sub-section 2 of Section 163-A of the Act

stipulates that there is no need to make plead or

establish the rash and negligent aspect even the

deceased himself was rash and negligent and died in

the accident. Then the claim petition filed under

Section 163-A of the Act is maintainable. In this

regard, I place reliance on the judgment of the

Hon'ble Supreme Court in the case of United India

Insurance Company Ltd. Vs. Sunil Kumar and

Another reported in (2019) 12 SCC 398, wherein at

paragraph No.8, it is held as under:

"8. From the above discussion, it is clear that grant of compensation under Section 163-A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by Section 163-A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the insurer based on the negligence of the claimant as contemplated by Section 140(4), to permit such defence to be introduced by the insurer and/or to understand the provisions of Section 163-A of the Act to be contemplating any such situation would go

contrary to the very legislative object behind introduction of Section 163-A of the Act, namely, final compensation within a limited time-frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability were taking an unduly long time. In fact, to understand Section 163-A of the Act to permit the insurer to raise the defence of negligence would be to bring a proceeding under Section 163-A of the Act on a par with the proceeding under Section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention."

10. Even though, the evidence produced by the

claimants themselves prove the fact that the deceased

was rash and negligent in riding the motorcycle and

by his own act, he died in the accident. In spite of it,

the claim petition filed under Section 163-A of the Act

is maintainable. Even if non-wearing of helmet on the

head, but keeping the same on left hand also amounts

to negligent, but for his own negligence also, the

claim petition filed under Section 163-A of the MV Act

is maintainable.

11. Considering the other submissions that in

the present case insurance policy issued in respect of

the motorcycle is "Package Policy" and covering the

risk of owner and driver for Rs.1,00,000/-. This is the

coverage of personal accident as per the terms and

conditions of the policy. The owner and driver is

entitled to the accident claim to an extent of

Rs.1,00,000/-, but this cannot prevent from making

claim under Section 163-A of the Act. Therefore, there

is no merit in the contention of the Insurance

Company that the owner who was driving the motor

cycle alone is entitled for personal accident coverage

of Rs.1,00,000/-. This contention is with regard to

coverage of personal accident based on payment of

extra premium. Therefore, upon claim made under

Section 163-A of the MV Act, even though, the

deceased himself was rash and negligent, but the

claim petition is very much maintainable and the

Tribunal by restricting the income at Rs.40,000/- per

annum has awarded the compensation. Therefore, the

judgment and award passed by the Tribunal is found

to be legal and justifiable, which needs no

interference. Therefore, I do not find any merit in the

appeal filed by the appellant-Insurance Company and

the same is liable to be dismissed. Even though, the

personal accident coverage is for Rs.1,00,000/-, but

by making payment of extra premium, that cannot be

restricted to Rs.1,00,000/- only for covering the

personal accident risk, since the claim petition is filed

under Section 163-A of the MV Act. Hence, I proceed

to pass the following

ORDER

The appeal is dismissed.

The judgment and award dated 28.02.2014

passed in MVC.No.2707/2012 by XXI Addl. Small

Causes Judge and XIX ACMM, Member, MACT,

Bangalore, is hereby confirmed.

The amount in deposit shall be transmitted to

the Tribunal along with the TCR and the copy of

this order forthwith.

Draw award accordingly.

No order as to costs.

In view of dismissal of the appeal,

I.A.No.1/2019 does not survive for consideration

and it is dismissed.

Sd/-

JUDGE

PB