Karnataka High Court
Lany D Souza vs Rekha Sooryanarayana Shetty on 27 November, 2023
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MFA No. 6133 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 6133 OF 2017
(MV-D)
BETWEEN:
1. LANY D'SOUZA
W/O LATE PHILIP D SOUZA,
R/AT MAREGOLI,
CHURCH ROAD, BASRURU,
KUNDAPURA TALUK,
UDUPI DISTRICT
2. SHANTHI D'SOUZA
W/O HARRY D MELLO,
R/AT MAREGOLI,
Digitally CHURCH ROAD, BASRURU,
signed by JAI
JYOTHI J KUNDAPURA TALUK,
Location: UDUPI DISTRICT
HIGH
COURT OF
KARNATAKA
3. PREMA D'SOUZA
W/O FRANCY D SOUZA,
R/AT MAREGOLI,
CHURCH ROAD, BASRURU,
KUNDAPURA TALUK,
UDUPI DISTRICT
4. RAJAN D'SOUZA
S/O LATE PHILIP D SOUZA,
R/AT MAREGOLI,
CHURCH ROAD, BASRURU,
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MFA No. 6133 of 2017
KUNDAPURA TALUK,
UDUPI DISTRICT
...APPELLANTS
(BY SRI. PAVANA CHANDRA SHETTY H.,ADVOCATE)
AND:
1. REKHA SOORYANARAYANA SHETTY
W/O SOORYANARAYANA SHETTY,
AGE MAJOR,
R/O JAGANNIVASA, BASRURU,
KUNDAPURA TALUK,
UDUPI DISTRICT
2. THE NATIONAL INSURANCE CO. LTD.,
BRANCH OFFICE KUNDAPURA,
IST FLOOR, GANESH MAHAL,
MUNICIPAL ROAD,
KUNDAPURA TALUK,
UDUPI DISTRICT
REP BY ITS BRANCH MANAGER
...RESPONDENTS
(BY R1 SERVED AND UNREPRESENTED;
SRI. S V HEGDE MULKHAND.,ADVOCATE FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED28.02.2017 PASSED
IN MVC NO.72/2012 ON THE FILE OF THE ADDITIONAL
DISTRICT JUDGE, MEMBER, ADDITIONAL MACT, UDUPI,
(SITTING AT KUNDAPURA), KUNDAPURA, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 6133 of 2017
JUDGMENT
This is an appeal filed by the claimant aggrieved by
the award passed in the MVC.No.72/2012 dated
28.02.2017 on the file of the Addl. District Judge &
Member Addl. MACT, Udupi (sitting at Kundapura).
Initially application is filed under section 166 of the Motor
Vehicle Act and later the same was got amended to
section 163A of the MV Act.
2. The claim petition is filed seeking compensation
of an amount of Rs.10,00,000/-, whereby the Tribunal has
awarded an amount of Rs.1,89,000/-. It is the case of the
claimant that on 10.10.2011 at about 11.00 a.m. he was
travelling as a pillion rider in the motor cycle which was
driven in a very high speed and negligent manner and
they met with an accident. He sustained severe head
injury and other injuries all over the body. The court
below on the question of liability had observed that basing
on the complaint, the policy have investigated into the
accident and submitted a report to the JMFC, Kundapura
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contending that Investigating Officer had conducted
detailed investigation but in-spite of visiting several
garages to find out the car which caused the accident they
could not find. No damages were caused to the vehicle in
which the claimant was traveling. Further the said vehicle
could not be traced out as the Magistrate has issued notice
to the complainant. The court observed that the vehicle
which has dashed to the front portion of the two wheeler
was not traced out by the police and when the car involved
in the accident is not traced, they converted this petition
under section 163A of the MV Act. The court below has
held that as the vehicle could not be found, the insurance
company is not liable to pay the compensation. When it
comes to the compensation taking the income at an
amount of Rs.40,000/- per annum applying multiplier 5
and by deducting 1/3rd towards personal expenses granted
an amount of Rs.1,34,000/- towards loss of dependency.
Towards loss of consortium granted an amount of
Rs.25,000/-, Towards loss of love and affection granted an
amount of Rs.25,000/-, Towards Transportation of the
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dead body granted an amount of Rs.5,000/-. Altogether
compensation of an amount of Rs.1,89,000/- was granted
by the Tribunal.
3. Learned counsel for the claimant submits that
the petition is filed under section 163A of the MV Act and
by adducing the evidence they showed that by using the
motor cycle and because of the rash and negligent driving
of the rider of the vehicle, accident had taken place. In
that case, basing on the investigation report, the court
below ought not to have held that the insurance company
is not liable to pay the compensation and the claimant has
failed to prove the accident. Further it is submitted that
even the compensation that was awarded by the Tribunal
is not just and reasonable.
4. Learned counsel for the insurance company
submits that as occurrence of the accident and the vehicle
could not be traced, the Tribunal has rightly held that they
have failed to prove the accident. He submits that though
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insurance company has not filed any appeal, the Tribunal
had granted amount towards loss of consortium, loss of
love and affection as if it is application under section 166
of the MV Act and the same is on the higher side.
5. Having heard the learned counsel on either
side, perused the entire material on record. In this case,
there is no dispute about the fact that the accident had
taken place and he had sustained injuries in the said
accident. The court below had absolved the insurance
company more on the aspect that the offending vehicle
which hit the two wheeler from behind could not be traced
out. Now in this case, there is use of motor vehicle and
because of that, he had sustained the injuries. Question
of negligence need not be proved in the petition under
section 163A of the MV Act. The court below has observed
that as offending car could not be traced out, they
changed the application from 166 to 163A of the MV Act .
The court below at the time of passing of the award,
cannot go into the said aspect as the amendment was
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allowed and it attained finality. In that view of the matter,
this court is of the view that as the said vehicle is insured
by the insurance company as on the date of the incident,
as there is a valid insurance policy, the insurance company
is liable to pay the compensation. As rightly argued by the
learned counsel for the insurance company, the court
below under the head of consortium, love & affection
granted amounts for which the claimant is not entitled
under section 163A of the MV Act. Hence, under the head
of funeral expenses they are entitled for an amount of
Rs.2,000/-, towards consortium an amount of
Rs.5,000/-, towards loss of estate an amount of
Rs.2,500/- and an amount of Rs.1,34,000/- towards
loss of dependency.
6. In the light of the law laid down by the Hon'ble
Supreme Court in the case of V. MEKALA -vs- M.
MALATHI AND ANOTHER 1, the claimant is entitled for
(2014) 11 SCC 178
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an amount of Rs.10,000/- towards legal expenses.
Altogether the claimant is entitled for an amount
Rs.1,53,500/- at 6% interest.
7. The claimant is entitled for compensation under
the following heads:
Sl. Description of Items Compensation
Awarded
No.
1. Loss of dependency Rs. 1,34,000/-
2. Funeral Expenses Rs. 2,000/-
3. Consortium Rs. 5,000/-
4. Loss of Estate Rs. 2,500/-
5. Legal Expenses Rs. 10,000/-
Total Rs. 1,53,500/-
8. Accordingly, the appeal filed by the claimant is
Allowed-in-part by reducing the compensation amount
from an amount of Rs.1,89,000/- to Rs.1,53,500/-.
(a) The Insurance company is held liable to
pay the compensation.
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(b) The compensation amount shall carry
interest @ 6% per annum from the date
of petition, till the date of realization.
(c) Respondent-Insurance Company shall
deposit the said compensation amount
with accrued interest before the tribunal
within a period of 8 (Eight) weeks.
(d) The Registry is directed to return the Trial
Court Record to the Tribunal along with
the certified copy of the order passed by
this court forthwith without any delay.
(e) No Costs.
Pending miscellaneous petitions, if any, shall
stand closed.
SD/-
JUDGE
TS
