The Oriental Insurance Co Ltd vs Raju
2022 Latest Caselaw 7734 Kant

                            1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 31ST DAY OF MAY 2022

                         BEFORE

     THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR

             MFA No. 9484 OF 2013 (MV)

BETWEEN:

THE ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE AT BANGALORE
NO.43/44 LEO SHOPPING COMPLEX
RESIDENCY ROAD, BANGALORE-560025.
REPRESENTED BY ITS DEPUTY MANAGER.
                                          ...APPELLANT
(BY SRI. S.V.HEGDE MULKHAND, ADVOCATE)
AND:
1.      RAJU
        S/O. PUTTASWAMY GOWDA
        AGED ABOUT 30 YEARS
        R/O. DK HALLI, MALAVALLI TALUK
        MANDYA DISTRICT-571430.

2.      CHIKKANNA
        S/O. BASAVEGOWDA,
        MAJOR IN AGE,
        C/O. D.S.MAHESH
        S/O. SHIVALINGEGOWDA,
        DALAVAYI KODIHALLI
        MALAVALLI TALUK, MANDYA DISTRICT-571430.

                                         RESPONDENTS
(BY SRI. P.MAHADEVASWAMY, ADV FOR R1
R2-SERVED)
                              2

     THIS MFA IS FILED UNDER SECTION 173 (1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 6.6.2013 PASSED IN MVC NO.2267/2011 ON
THE FILE OF THE 6TH ADDITIONAL JUDGE, MEMBER,
MACT, COURT OF SMALL CAUSES, BANGALORE,
AWARDING A COMPENSATION OF RS.1,17,200/-
WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL REALISATION.

  THIS MFA COMING ON FOR FINAL HEARING THIS
  DAY, THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

This appeal is filed under Section-173(1) of the

Motor Vehicles Act, 1988 (hereinafter referred to the 'MV

Act' for short) by the Insurance Company challenging the

judgment and award dated 06.06.2013, passed in MVC

No.2267/2011, on the file of the VI Addl. Judge & MACT, at

Bengaluru (SCCH-2) (hereinafter referred to as 'the

Tribunal' for short).

2. On 06.01.2001, claimant was proceeding as

pillion rider in Bajaj Pulsar Motorcycle bearing No.KA-11-V-

9303 on Halagur-Kanankapura NH-209 road when they

reached Sony Petrol bunk bridge, at that time, the rider of

Bajaj Platina Motorcycle bearing No.KA-11-H-8044 came

from the opposite direction with high speed and in a rash

and negligent manner so as to endanger human life and

dashed against claimant's Motorcycle. Due to which, the

petitioner and the rider fell down and sustained grievous

injuries. Immediately after the accident, the claimant was

shifted to Halagur Govt. Hospital, wherein he was given

first aid and then shifted to Mandya Dist. Hospital, where

he was inpatient from 06.01.2011 to 13.1.2011. X-rays

were taken, which revealed fracture of right tibia shaft.

The claimant underwent ORIF and was discharged on

13.01.2011 with an advice for bed rest. It is averred that

the claimant has spent Rs.50,000/- for medical expenses,

transportation, food and nourishment.

3. Hence, a claim petition was filed by the claimant

under Section 163-A of the MV Act claiming compensation

for the injuries sustained by him in the accident. The

Tribunal on appreciating the materials on record has

allowed the petition in-part, and awarded a compensation

of Rs.1,17,200/- along with interest at the rate of 6% per

annum from the date of petition till realization. The

Tribunal held that the respondents are jointly and severally

liable to pay the compensation.

4. The learned counsel for the appellant -

Insurance Company submitted that the rider of the Bajaj

Platina Motorcycle bearing No.KA-11-H-8044 was rash and

negligent and dashed against the claimant's motorcycle.

But, the owner and insurer of Bajaj Platina Motorcycle

bearing No.KA-11-H-8044 have not been made as parties.

He further submits that the rider of Bajaj Pulsar Motorcycle

bearing No.KA-11-B-9303 was riding the Motorcycle

carefully. Therefore, the claimant being a pillion rider

ought to have claimed against the owner and insurer of the

Bajaj Platina Motorcycle bearing No.KA-11-H-8044 but

without doing so, he has made a claim against the non-

offending vehicle i.e., Bajaj Pulsar Motorcycle bearing No.

KA-11-V-9303. Therefore, he prays this Court to make

interference in the judgment and award passed by the

Tribunal on this ground. He further submitted that the

FIR, complaint and the charge sheet are produced at

Exs.P-1 to P-3, the entire allegation is made against the

rider of the motorcycle Bajaj Platina Motorcycle bearing

No.KA-11-H-8044. When these are the admitted facts that

the entire accusation is made against the rider of the Bajaj

Platina Motorcycle bearing No.KA-11-H-8044 but claim has

been made against the non-offending vehicle, which is not

correct. He further submits that from the police

investigation and from the documents pertaining to the

investigation viz., FIR, compliant, Charge Sheet, Mahazar,

2 IMV Reports etc., the accusation is against the rider of

the Bajaj Platina Motorcycle bearing No.KA-11-H-8044. He

further argued that the claimant has to be made a claim

before the Tribunal against the owner and insurer of the

Bajaj Platina Motorcycle bearing No.KA-11-H-8044 and

they should have been made a party in the claim, then

that would have been correct approach. Therefore, he

prays to allow the appeal by setting-aside the impugned

judgment and award passed by the Tribunal.

5. On the other hand, learned counsel appearing for

the respondent No.1 - claimant submitted that the petition

is filed under Section 163-A of the Motor Vehicle Act, 1988,

for the claim, the petition is proper. The respondent No.1

- claimant had filed claim petition under Section 163-A of

the MV Act before the Tribunal as against the owner and

insurer of Bajaj Pulsar Motorcycle bearing No.KA-11-V-

9303. Therefore, submitted that it is rightly considered by

the Tribunal and awarded compensation which needs no

interference of this Court and prays for dismissal of the

appeal.

6. Heard learned counsel for the parties and

perused the materials on record.

7. Considering the submissions made by learned

counsel appearing for the appellant-Insurance Company

even though it is borne out from the documentary

evidence viz., FIR, compliant, Charge Sheets, Mahazar, 2

IMV Reports which are marked at Exs.P.1 to P.7 that the

entire accusation is made against the rider of the Bajaj

Platina Motorcycle bearing No.KA-11-H-8044, but it is right

of the claimant to pursue against the vehicle which are

involved in accident. Accordingly, the claimant has chosen

to make claim against the Motorcycle No.KA-11-V-9303 by

invoking provision of Section 163-A of the Act. When the

claim is made under Sec.163-A of the Act there is no need

to plead and establish rash and negligence.

8. The Hon'ble Apex Court reported in (2019) 12

SCC 398 in the case of United India Insurance

Company Limited vs Sunil Kumar and another was

pleased to observe at para 8 as follows:-

"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 there under 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".

9. Therefore, the claim petition filed by the

claimant under Section 163-A of the MV Act is just and

maintainable and there is no good ground made out to

interfere with the judgment and award passed by the

Tribunal. Therefore, I find no justification in the grounds

made by the Insurance Company and the appeal being

devoid of merits is liable to be dismissed. Accordingly, I

proceed to pass the following:-

ORDER

(i) The appeal is hereby dismissed.

(ii) The judgment and award dated 06.06.2013

passed in MVC No.2267/2011 on the file of

the VI Addl. Judge & MACT at Bengaluru is

hereby confirmed.

(iii) The amount in deposit is ordered to be

transferred to the Tribunal forthwith, along

with TCR and a certified copy of this order.

     (iv)    Draw award accordingly.




                                    Sd/-
                                   JUDGE


VS