Karnataka High Court
M/S Oriental Insurance Company ... vs Smt Susheelamma @ Susila on 25 September, 2023
Bench: C M Joshi
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MFA No. 8194 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 8194 OF 2017 (MV-I)
BETWEEN:
M/S. ORIENTAL INSURANCE COMPANY LIMITED,
NO. 101/56, JAYALAKSHMI MANSION,
2ND FLOOR, DR. RAJKUMAR ROAD,
4TH BLOCK, RAJAJINAGAR,
BENGALURU.
NOW REP. BY ITS REGIONAL OFFICE,
NO. 44/45, LEO SHOPPING COMPLEX,
RESIDENCY ROAD,
BENGALURU 560 025.
REP BY ITS AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI K.S. LAKSHMINARASAPPA, ADVOCATE
FOR SRI A M VENKATESH, ADVOCATE THROUGH VC)
AND:
Digitally signed
1. SMT. SUSHEELAMMA @ SUSILA,
by T S W/O. LATE. SUBRAMANI @ R SUBRAMANYAM
NAGARATHNA
Location: High
Court of 2. MASTER SHIVA @ SHIVASHANKAR,
Karnataka
S/O. LATE SUBRAMANI,
AGED ABOUT 14 YEARS.
3. KUMARI PAVITHRA,
D/O. LATE SUBRAMANI,
AGED ABOUT 12 YEARS.
4. MASTER ANJAPPA @ PURUSHOTHAM,
S/O. LATE SUBRAMANI,
AGED ABOUT 10 YEARS.
5. SMT. R GAYATHRI,
W/O. LATE. SUBRAMANI,
AGED ABOUT 28 YEARS
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MFA No. 8194 of 2017
6. KUMARI REDDAMMA,
D/O. LATE. SUBRAMANI,
AGED ABOUT 10 YEARS.
7. R. VENKATESHULU
S/O. MUNIVENKATAPPA,
AGED ABOUT 68 YEARS.
8. SMT. GANGULAMMA,
W/O. R VENKATESHULU,
AGED ABOUT 63 YEARS.
SINCE RESPONDENT NOS. 2 TO 4
ARE MINORS,
REP. BY THEIR MOTHER
RESPONDENT NO.1 HEREIN.
SINCE RESPONDENT NO. 6 IS MINOR,
REP. BY HER MOTHER
RESPONDENT NO.5 HEREIN.
ALL ARE R/AT MARIMAKALAPALLI,
GANDRAJAPALLI POST,
CHITTOR DISTRICT,
A.P-517 001.
9. THE DIVISIONAL MANAGER,
K.S.R.T.C, KOLAR DIVISION,
KOLAR-563 101.
...RESPONDENTS
(BY SRI GOPALAKRISHNA.N, ADVOCATE FOR R1 TO 8;
SRI M ASHOK KUMAR, ADVOCATE FOR R-9)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 07.07.2017 PASSED IN MVC
NO.128/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND CJM, MACT, KOLAR, AWARDING COMPENSATION
OF RS.5,21,500/- WITH INTEREST AT 6% P.A. FROM THE DATE
OF PETITION TILL THE DATE OF REALIZATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
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MFA No. 8194 of 2017
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Being aggrieved by the judgment and award dated
07.07.2017 passed in MVC No.128/2014 by the learned
Principal Senior Civil Judge and CJM and MACT, Kolar,
whereby the compensation of Rs.5,21,500/- with interest
at 6% p.a. from the date of petition till the date of
realization has been awarded by the Tribunal on account
of the death of one Subramani @ Subramanyam in the
road traffic accident, the Insurance company is before
this Court in appeal.
2. The petitioner No.1-wife, petitioner No.5-wife,
petitioners Nos. 7 and 8- parents and petitioners 2 to 4
and 6 - children of deceased Subramani @ Subramanyam,
have filed a claim petition under Section 163A of M.V. Act,
claiming compensation on account of the death of
Subramani contending that, deceased Subramani @
Subramanyam was proceeding towards Thirumala Dairy,
near Kantharaja Circle from Bestharahalli by driving a
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tempo bearing No. KA-07-3342 on 27-6-2011 at around
10.30 PM and when he reached Ananthapura gate on
Kolar-Mulbagal NH.4 road, one KSRTC bus bearing No. KA-
40-F-363 came from opposite direction i.e. from Kolar side
being driven by its driver in a rash and negligent manner
and dashed as against the tempo which was being driven
by Subramani. Due to which, Subramani who was driving
the tempo was caught inside the cabin and sustained
grievous head injuries and succumbed to the injuries at
the spot itself. It was the further case of the petitioners
that deceased Subramani was aged about 35 years, hale
and healthy and driver by profession and was working
under different employers and earning Rs.40,000/- per
annum and the petitioners being the family members were
completely depending on the earnings of deceased
Subramani and now they have been put to monetary loss
and hardship. They have already spent Rs.50,000/-
towards transportation of dead body and funeral
obsequies. It was further contended by the petitioners
that respondent No.1- the R.C. owner of the KSRTC bus
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and the respondent No.2- its insurer are jointly and
severally liable to pay the compensation.
3. On issuance of notice, respondents Nos. 1 and 2
have appeared through their respective counsel and filed
their objection statement.
4. Respondent No.1 in the objection statement
denied the petition averments in its entirety and
contended that Bus bearing No. KA-40-F-0363 was duly
insured with the respondent No.2 as on the date of
accident and the vehicle documents were intact, the driver
was possessing valid D.L., and therefore, liability if any
has to be fixed as against the respondent No.2. Even
respondent No.1 has denied that the accident took place
due to the rash and negligent act of the driver of KSRTC
bus and on the contrary, it has contended that only due to
the negligent act of the tempo driver i.e. deceased
Subramani himself the accident took place and on
humanitarian grounds respondent No.1 has already paid a
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sum of Rs.50,000/- to the claimants and sought dismiss
the petition.
5. Respondent No.2-Insurance Company filed its
objection statement denying the entire petition averments
and the manner in which accident took place on 27-6-
2011. It has also denied that the petitioners have spent
Rs.50,000/- towards funeral and obsequies. But it has
admitted that the KSRTC bus No. KA-40-F-388 was duly
insured with it as on the date of accident however, with
regard to the liability, it has contended that the same is
subject to terms and conditions of the policy. It has also
contended that as on the date of accident, the driver was
not possessing valid D.L., and even the vehicular
documents are not intact and the 2nd respondent has
contended that due to the violation of the policy
conditions, it is not liable to pay compensation to the
petitioners and that this petition is bad for non-joinder of
necessary party as the owner and insurance company of
the tempo No. KA-07-3342 have not been impleaded as
the respondents. Further, it has denied the age,
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occupation and income of the deceased. Therefore, prayed
to dismiss the petition.
6. On the basis of the above pleadings, the Tribunal
has framed the appropriate issues and petitioner No.1 was
examined as PW1 and Exs.P1 to P11 were marked in the
evidence. No oral or documentary evidence are adduced
and produced by the respondents.
7. The Tribunal after hearing both sides allowed the
claim petition in part and awarded the compensation of
Rs.5,21,500/- under different heads as below and
fastened liability on the insurance company:
Loss of dependency Rs.5,12,000/-
Funeral expenses Rs. 2,000/-
Loss of consortium Rs. 5,000/-
Loss of estate Rs. 2,500/-
Total Rs.5,21,500/-
8. Being aggrieved by the said judgment and award,
the Insurance company is before this Court in appeal
contending that the Tribunal has not bestowed its
attention to the fact that the claimants are the legal heirs
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of the tortfeaser and in view of the decision in the case of
Ningamma and another Vs. United India Insurance
Company Limited,1, the Tribunal should have absolved
the liability of the insurance company. It is also contended
that the quantum of the compensation was not calculated
as per the Schedule-II to the M.V. Act which was essential
when a petition is filed under Section 163A of the M.V. Act.
appeared through their respective counsel before this
Court and on admitting the appeal, the Tribunal records
have been secured.
10. Heard the learned counsel for the appellant-
Insurance Company and learned counsel appearing for the
respondents and perused the records.
11. The learned counsel appearing for the appellant-
Insurance Company contends that the petitioners are the
legal heirs of the tortfeaser himself who succumbed to the
injuries in the accident. He has submitted that the
petitioners could not have maintained the petition under
(2009) 13 SCC 710
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Section 163A of the M.V. Act, since the chargesheet was
filed against the deceased Subramani. He contends that
there was no negligence on the part of the driver of the
bus insured by the appellant herein and therefore, the
Tribunal erred in fastening the liability on the appellant.
He also contended that the Tribunal also erred in holding
that the personal expenses of the deceased was 1/5th
owing to the larger family.
12. Per contra, learned counsel appearing for the
petitioners/respondent Nos. 1 to 8 contended that the
Tribunal has rightly come to the conclusion that the
appellant is liable to pay the compensation. He contends
that the vehicle insured by the appellant, i.e. the bus
owned by respondent No.1 KSRTC was involved in the
accident and therefore, the petition under Section 163A of
the M.V. Act, is maintainable. He submits that there was
no exception under Section 147 of the M.V. Act, for the
insurer to compensate the petitioners.
13. The factual matrix of the case discloses that the
deceased Subramani was driving a goods tempo bearing
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KA.07.3342 in a rash and negligent manner and went on
the wrong side and hit the KSRTC bus which was coming
from the opposite direction. Though the petitioners
contended that the bus driver was driving the same in
negligent manner, the evidence showed otherwise. The
chargesheet was also filed against the deceased.
14. It is relevant to note that the question involved
in a petition filed under Section 163A of M.V. Act, is,
whether the accident was due to the involvement of the
bus belonging to respondent No.1-KSRTC? There cannot
be any doubt about the involvement of the said bus, as
may be seen from the admitted facts. The learned counsel
appearing for the appellant -Insurance Company contend
that when the deceased Subramani was found to be the
tortfeaser, his legal heirs cannot maintain a petition under
Section 163A of the M.V. Act. I do not find any substance
in such contentions. The reliance by the learned counsel
for the appellant on the decision in the case of Ningamma
and another Vs. United India Insurance Company Limited
supra is also appears to be misplaced. In Ningamma and
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another's case, a motor cyclist dashed against the bullock
cart and sustained injuries and later succumbed to the
injuries. Obviously, no other vehicle was involved in the
accident. The claim petition was filed against the insurer
of the motor cycle. Therefore, the Apex Court came to the
conclusion that the petition under Section 163A of the
M.V. Act is not maintainable. However, it remanded the
matter to find out whether the petition under Section 166
of the M.V. Act, would be maintainable if the conditions of
the policy permit and the claimants come within the
purview of Section 147 of the M.V. Act.
15. Learned counsel appearing for the appellant has
also placed reliance on the decision in the case of Appaji
(since deceased) and another Vs. M. Krishna and
another2. In the said case also, the accident was caused
by a scooterist while he was avoiding a cyclist who had
emerged on the road. It was held that the rider would not
come in the purview of a third party contemplated under
Chapter XI of the Motor Vehicles Act and therefore, even
2004 ACJ 1289
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the provisions of Section 163A of the M.V. Act are not
applicable. However, the decision in the care of National
Insurance Company Limited vs. Honnappa and
others3 rendered by a division bench of this Court it was
held that when there are two motor vehicles are involved,
a petition under Section 163A of MV Act is maintainable.
The said decision is aptly applicable to the case on hand.
16. In the case on hand, the petitioners have not
claimed any compensation against the insurer of the
vehicle driven by the deceased. Evidently, the claim is
against the other vehicle which was involved in the
accident. The driver of KSRTC bus was also involved in
the accident and as such he is a tortfeaser within the
meaning of actionable negligence. When the investigating
authority found that there was no culpable negligence, the
chargesheet was filed against the deceased.
17. It is pertinent to note that the petitioners herein
come within the purview of third party contemplated under
ILR 2008 KAR 959
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Chapter XI of MV Act. Therefore, the above decisions are
not applicable to the facts and situation of the present
case. The objective of Section 163A of the M.V. Act, is to
provide compensation without considering the question of
negligence. For the purpose of Section 163A, a mere
involvement of the vehicle would be sufficient enough, but
however, it would be subject to the restrictions under
Section 147 of the M.V. Act. Therefore, the argument of
the learned counsel for the appellant-Insurance Company
that, it would not be liable to pay the compensation to the
petitioners is liable to be rejected.
18. Coming to the quantum of the compensation,
the Tribunal has deducted 1/5th towards to personal
expenses of the deceased owing to the fact that there
were eight dependants on the deceased. It is worth to
note Section 163A of the M.V. Act, contemplates awarding
compensation strictly under the provisions of Schedule II
to the Act. As per Schedule II there is no provision to
calculate the personal expenses depending upon the
number of the dependants. When the Act provides that
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the compensation has to be calculated as per Schedule II,
the deviation is impermissible. Therefore, the submission
by learned counsel appearing for the appellant-Insurance
Company deserves to be accepted. Under these
circumstances, the compensation is calculated as:
Rs.40,000/- x 16 x 2/3rd =4,26,667/-. Adding funeral
expenses at Rs.2,000/-, consortium at Rs.5,000/-, loss of
estate at Rs.2,500/-, the total compensation comes to
Rs.4,36,167/-. Therefore, the petitioners are entitled for a
compensation of Rs.4,36,167/- instead of Rs.5,21,500/-
and the appeal filed by the Insurance Company deserves
to be allowed in part. Hence, the following:
ORDER
(i) The appeal filed by the Insurance
Company is allowed in part.
(ii) The impugned judgment and award
passed by the Tribunal is modified by awarding
compensation of Rs.4,36,167/- instead of
Rs.5,21,500/- together with interest at 6% p.a.
from the date of petition till its realization.
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(iii) The Insurance company is directed to
deposit the compensation amount within a
period of six weeks from the date of this order.
(iv) Rest of the order of the Tribunal stands
unaltered.
(v) The amount in deposit shall be
transmitted to the concerned Tribunal,
forthwith.
Sd/-
JUDGE
tsn*
