Karnataka High Court
Iranna S/O Shivamurthappa ... vs Shivaji S/O Sopanrao Jagatap on 30 June, 2023
Bench: M.G.Umaj
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MFA No. 20892 of 2013
C/W MFA No. 20891 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MRS. JUSTICE M.G.UMA
MISCELLANEOUS FIRST APPEAL NO.20892 OF 2013 C/W
MISCELLANEOUS FIRST APPEAL NO. 20891 OF 2013 (MV)
IN M.F.A.NO.20892/2013:
BETWEEN:
IRANNA S/O. SHIVAMURTHAPPA KAGGODI,
AGED ABOUT: 21 YEARS, OCC: TILES FITTER,
R/O: BHAIRIDEVARKOPPA, TQ: HUBLI,
DIST: DHARWAD.
...APPELLANT
(BY SRI K. ANANDKUMAR, ADVOCATE)
AND:
1. SHIVAJI S/O. SOPANRAO JAGATAP,
AGE: MAJOR, OCC: LOWER WONER,
R/O: MAHOR TALUKA PURANDAR,
DIST: PUNE, STATE MAHARASTRA.
2. THE NEW INDIA ASSURANCE CO., LTD.,
Digitally
signed by REPT. BY ITS DIVISIONAL MANAGER,
VINAYAKA SAVITRI SADAN, P.B. ROAD,
BV DHARWAD, DIST: DHARWAD.
...RESPONDENTS
(BY SRI SHASHANK HEGDE, ADVOCATE FOR
SMT. PREETI SHANSHANK, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSES WITH)
THIS MFA IS FIED UNDER SECTION 173(1) OF THE MOTOR
VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
30.08.2012 PASSED IN MVC NO.151/2011 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL, MOTOR
ACCIDENT CLAIM TRIBUNAL, HUBLI, PARTLY ALLOWING THE CLAIM
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PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN M.F.A.NO.20891/2013:
BETWEEN:
BABUJI S/O. DEVENDRAPPA WAGAMODE,
AGED ABOUT 37 YEARS, OCC: TILES FITTER,
R/O. BHAIRIDEVARKOPPA, TQ: HUBLI,
DIST: DHARWAD.
...APPELLANT
(BY SRI K. ANANDKUMAR, ADVOCATE)
AND:
1. SHIVAJI S/O. SOPANRAO JAGATAP,
AGE: MAJOR, OCC: LOWER WONER,
R/O: MAHOR TALUKA PURANDAR,
DIST: PUNE, STATE MAHARASTRA.
2. THE NEW INDIA ASSURANCE CO., LTD.,
REPT. BY ITS DIVISIONAL MANAGER,
SAVITRI SADAN, P.B. ROAD,
DHARWAD, DIST: DHARWAD.
...RESPONDENTS
(BY SRI SHASHANK HEGDE, ADVOCATE FOR
SMT. PREETI SHANSHANK, ADVOCATE FOR R2;
NOTICE TO R1 IS HELD SUFFICIENT)
THIS MFA IS FIED UNDER SECTION 173(1) OF THE MOTOR
VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
30.08.2012 PASSED IN MVC NO.152/2011 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL, MOTOR
ACCIDENT CLAIM TRIBUNAL, HUBLI, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The claimants in M.V.C. No. 151/2011 and M.V.C. No.
152/2011 on the file of the learned Prl. Sr. Civil Judge &
AMACT, Hubli (hereinafter referred to as the Tribunal), are
impugning the common judgment and award dated 30.08.2012
awarding compensation of Rs.48,940/- and Rs.67,760/-
respectively, with interest at 8% p.a. from the date of petition
till realisation and seeking enhancement of the same by holding
that the respondents are liable to pay the entire amount of
compensation.
Parties shall be referred to as per their ranking before the
Tribunal.
2. Brief facts of the case are that the claimants have filed
claim petitions u/s 163-A of the Motor Vehicles Act (for short
'Act') claiming compensation from respondent nos.1 and 2
contending that on 22.01.2010 the claimant in M.V.C. No.
152/2011 as rider and the claimant in M.V.C. No.151/2011 as
pillion rider of the motorcycle bearing reg. no. KA-25-EF-2985
were proceeding towards Savadatti. At that time, the lorry
bearing reg. no. MH-12-AR-2158 which was going in front of
the motorcycle taken it to the extreme right side, while the
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rider of the motorcycle was overtaking the same. As a result of
which both the claimants sustained injuries. It is stated that
they have suffered permanent disability. Therefore, they are
entitled for compensation.
The claim of the claimants were resisted by respondent
No.2-insurer of the lorry in question by filing objections
statement denying their contentions. It is contended that the
truck in question was not insured with respondent No.2. Even
if it is proved that it is liable to pay compensation, it is subject
to the validity of driving licence and documents. It is denied
that the accident in question is due to the rash and negligence
of the lorry in question. The claimant in M.V.C. No. 152/2011
was negligent in riding the motorcycle and therefore the
claimants are not entitled for compensation from respondent
nos.1 and 2. The owner and insurer of the motorcycle bearing
No. KA-25-EB-2985 are not made as parties. Hence, the
petition is bad for non joinder of necessary parties.
Accordingly, it prayed for dismissal of the claim petitions.
3. On the basis of these pleadings, the Tribunal framed the
following issues.
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In M.V.C.NO.151/2011:
1. Whether the petitioner proves that on 22.01.2010 at
about 8.00 p.m. he was pillion rider of a motor cycle
bearing No.KA-25/EB 2985 on Navalgudna - Savadatti
road, near Hanchinal village a Lorry bearing Reg.No.MH-
12 AR-2158 driven by its driver in a rash and negligent
manner dashed against the petitioner as a result of
which the petitioner sustained grievous injuries?
2. Whether respondent No.2 proves that the petition is bad
for non-joinder of necessary parties?
3. Whether the respondent No.2 proves that the driver of
the lorry was not possessing valid and effective driving
license as on the date of accident, as such there is
violation of policy conditions?
4. Whether the petitioner is entitled for the compensation?
If so, from whom, at what rate?
5. What order or award?
In M.V.C.NO.152/2001:
1. Whether the petitioner proves that on 22.01.2010 at
about 8.00 p.m. he was rider of a motor cycle bearing
No.KA-25/EB 2985 along with the pillion rider Iranna
and Praveen from Hanchinal towards Savadatti at that
time a lorry bearing Reg.No.MH-12/AR 2158 driven by
its driver in a rash and negligent manner deashed
against the petitioner as a result of which the petitioner
sustained injuries?
2. Whether the respondent proves that the driver of the
lorry was not possessing valid and effective driving
license as on the date of accident?
3. Whether the petition is bad for non-joinder of necessary
parties?
4. Whether the petitioner is entitled for the compensation?
IF so, what amount and interest?
5. What order or award?
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The claimants examined PWs.1 to 3 and got marked
Exs.P.1 to P.22 in support of their contention. The respondents
got examined RWs.1 to 3 and got marked Ex.R.1 in support of
its defence. The Tribunal after taking into consideration all
these materials on record, came to the conclusion that the rider
of the motorcycle has contributed upto 30% while driver of the
lorry is responsible to the extent of 70% in causing the
accident. Therefore, it is held that the claimants are entitled
only for 70% f the compensation, i.e., Rs.48,900/- and
Rs.67,760/-. Being aggrieved by the same, the claimants are
before this Court.
4. Heard Sri K. Anandkumar, learned counsel for the
appellants-claimants and Sri Shashank Hegde, learned counsel
for respondent No.2-insurer.
5. Learned counsel for the appellants-claimants contended
that the claim petitions are filed u/s 163-A of the Act and not
u/s 166 of the Act. Under such circumstances, the claimants
need not plead or prove the negligence on the part of the
offending vehicle. The Tribunal committed an error in
determining the contributory negligence and saddling 30% of
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the liability on the owner of the motorcycle which is
impermissible u/s 163A of the Act. Therefore, he prays for
allowing the appeals and to award compensation against
respondent No.2 alone.
6. Per contra, learned counsel for respondent No.2-insurer
opposing the appeals submitted that the materials on record
disclose that rider of the motorcycle was at fault who tried to
overtake the lorry without noticing the upcoming vehicle as a
result of which the accident had occurred. Under such
circumstances, the Tribunal was right in apportioning the
liability between the owner of the motorcycle and the lorry
which does not call for interference. However, he contended
that the rate of interest awarded at 8% p.a. is without any
basis. Hence, the said is to be reduced to 6% p.a. Hence,
prays for dismissing the appeals.
7. Perused the material on record including the trial Court
records.
8. The point that arises for consideration in these appeals is:
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Whether the Tribunal was right in apportioning the
liability between the motorcycle and the lorry at 70:30
for payment of compensation u/s 163A of the Act?
9. My answer to the above point is in the affirmative for the
following:
REASONS
10. The materials on record disclose that there is a road
traffic accident where the claimant in M.V.C. No. 152/2011 was
the rider and the claimant in M.V.C. No. 151/2011 was on
pillion. The first information was lodged against the rider of the
motorcycle and the charge sheet was also filed against him
after investigation. However, claim petitions were filed against
the owner and insurer of the lorry in question.
11. The contention raised by the respondent No.2 is that
since rider of the motorcycle was rash and negligent which
resulted in accident, the owner and insurer of the lorry are not
liable to pay compensation. Further, the rate of interest
awarded by the Tribunal at the rate of 8% p.a. is exorbitant
and the same is required to be reduced.
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12. As rightly contended by the learned counsel for the
appellants, Sec. 163A of the Act provides for claiming
compensation on structured formula and the claimant is not
required to plead or establish that the accident was due to any
negligent act or wrongful act of the driver of a particular vehicle
or by other person. That means to say u/s 163A of the Act the
claimant is entitled to claim compensation without pleading or
proving any negligence on the part of any person. The only
thing required to be proved is that there was a road traffic
accident involving the vehicle which resulted in death or injury
which resulted in permanent disability.
13. The Apex Court in United India Insurance Co. Ltd. V.
Sunil Kumar and Another1 on considering its earlier decisions
and also the intention of the Legislature in enacting Sec.163A
of the Act, held in paragraph no. 8 as under:
"8. We are, therefore, of the view that liability to make
compensation under section 163-A is on the principle of no
fault and, therefore, the question as to who is at fault is
immaterial and foreign to an inquiry under section 163-A.
Section 163-A does not make any provision for apportionment
of the liability. If the owner of the vehicle or the Insurance
2013 ACJ 2856
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Company is permitted to prove contributory negligence or
default or wrongful act on the part of the victim or claimant,
naturally it would defeat the very object and purpose of section
163-A of the Act. Legislature never wanted the claimant to
plead or establish negligence on the part of the owner or the
driver. Once it is established that death or permanent
disablement occurred during the course of the user of the
vehicle and the vehicle is insured, the insurance company or
the owner, as the case may be, shall be liable to pay the
compensation, which is a statutory obligation."
(emphasis supplied)
14. Thus the position of law is very well settled. Even though
the materials placed before the Court prima facie disclose that
the claimant in M.V.C. No. 152/2011 being the rider was at
fault which resulted in road traffic accident, the fact remains
that the claimants in both the claim petitions are claiming
compensation from the owner and the insurer of the lorry
involved in the accident. Since the claim is u/s 163A of the Act,
it is not permissible for the insurer to contend that the accident
had occurred due to the rash and negligent riding of the
motorcycle. Situation would have been different if the owner
and the insurer of both the vehicles are arrayed as parties by
the claimants in claiming compensation, then the question
would have arisen as to the extent of liability on each of the
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respondent. But in the present case, no such contingency
would arise and therefore, I am of the opinion that the Tribunal
has committed an error in apportioning the liability between the
rider of the motorcycle and the insurer of the lorry, forgetting
the fact that the claimants are claiming compensation u/s 163A
of the Act. However, as rightly contended on behalf of the
respondent, the Tribunal has not assigned any valid reasons to
award the interest at 8% p.a. Hence, the same is to be
reduced to 6% p.a. which is just and reasonable. Accordingly,
I answer the above point partly in the affirmative and proceed
to pass the following:
ORDER
Appeals are allowed in part.
Consequently, the impugned common judgment and
award passed in M.V.C. No. 151/2011 and 152/2011 dated
30.08.2012 on the file of Prl. Sr. Civil Judge & AMACT, Hubli is
modified to the extent that the entire compensation amount
shall be paid by the insured and the insurer of the lorry, i.e.,
respondent nos. 1 and 2 herein, jointly and severally. Further
the interest payable on the compensation amount is reduced
from 8% to 6%.
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Insurer shall pay the compensation with up to date
interest, within two months from the date of the award.
Draw award accordingly.
Send back the trial Court records with copy of the
judgment and award.
SD/-
JUDGE
BVV
