Karnataka High Court
Smt. Pratima W/O. Madivalappa Naikar vs Mr. Thalkin Ahamed B.A. S/O. B.H.Ameed ... on 25 July, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No.101145/2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.101145 OF 2021 (MV)
BETWEEN:
1. SMT. PRATIMA W/O. MADIVALAPPA NAIKAR,
AGE: 30 YEARS, OCC: HOUSEHOLD, R/O: MUMMIGATTI,
TQ. AND DIST: DHARAWAD.
2. KAVERI D/O. MADIVALAPPA NAIKAR,
AGE: 9 YEARS, OCC: STUDENT, R/O: MUMMIGATTI,
TQ. AND DIST: DHARAWAD.
3. KARTHIKA S/O. MADIVALAPPA NAIKAR,
AGE: 8 YEARS, OCC: STUDENT, R/O: MUMMIGATTI,
TQ. AND DIST: DHARAWAD.
4. KEERTHI D/O. MADIVALAPPA NAIKAR,
AGE: 4 YEARS, OCC: NIL, R/O: MUMMIGATTI,
TQ. AND DIST. DHARAWAD.
NOTE: APPELLANT NO.2 AND 4 ARE MINORS
Digitally signed
by VINAYAKA B V HENCE THEY ARE R/BY THEIR NATURAL
Location: HIGH GUARDIAN I.E. MOTHER APPELLANT NO.1
COURT OF
KARNATAKA
5. KALLAPPA NINGAPPA NAIKAR,
AGE: 77 YEARS, OCC: NIL, R/O: MUMMIGATTI,
TQ. AND DIST. DHARAWAD.
6. IRAVVA W/O. KALLAPPA NAIKAR,
AGE: 72 YEARS, OCC: NIL, R/O: MUMMIGATTI,
TQ. AND DIST. DHARAWAD.
- APPELLANTS
(BY SRI B.S. SANGATI, ADVOCATE)
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MFA No.101145/2021
AND:
1. MR. THALKIN AHAMED B.A.
S/O. B.H. AMEED AHAMED,
AGE: MAJOR, OCC: BUSINESS,
R/O: EAST-WEST TOURIST CORPORATION,
MUSLIM HOSTEL COMPLEX,
SIR.M.V. ROAD, SHIMOGA-1.
2. THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO.LTD.,
ENKAY COMPLEX, KESHWAPUR
HUBBALLI.
POLICY NO.473100/31/2018/6424.
3. THE DIVISIONAL MANAGER,
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
HUBBALLI.
POLICY NO.OG-17-1529-1803-00000646.
- RESPONDENTS
(BY SRI R.R. MANE, AGA FOR R2;
SRI S.K. KAYAKAMATH, ADVOCATE FOR R3;
NOTICE TO R1 IS SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988, AGAINST
THE JUDGMENT AND AWARD DATED 31.05.2021 PASSED IN
M.V.C. NO.341/2018 ON THE FILE OF THE IV ADDITIONAL
SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT
CLAIMS TRIBUNAL, DHARWAD, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION AND ETC.,
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN
HEARD AND RESERVED ON 22.07.2024 AND COMING ON FOR
PRONOUNCEMENT, THIS DAY, BASAVARAJA J., DELIVERED/
PRONOUNCED THE FOLLOWING:
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MFA No.101145/2021
CORAM : HON'BLE JUSTICE S G PANDIT
AND
HON'BLE JUSTICE G BASAVARAJA
CAV JUDGMENT
(PER: HON'BLE JUSTICE G BASAVARAJA)
Appellants/ claimants have preferred this appeal against
the judgment and award dated 31.05.2021 passed by the
learned IV Addl. Senior Civil Judge & Addl. M.A.C.T., Dharwad
(for short 'Tribunal') in M.V.C. No. 341/2018. The parties are
referred to their ranks as they stood before the Tribunal.
2. Brief facts leading to this appeal are that the appellants/
claimants have filed claim petition u/S 163-A of Motor Vehicles
Act seeking compensation for the death of Madivalappa
Kallappa Naikar who died in the accident. It is stated that on
04.11.2017 at about 2.15 a.m. when the deceased being the
driver of the lorry bearing Reg. No. KA-25-D-4125 was
proceeding in the said lorry on NH-206, a bus bearing Reg. No.
KA-20-C-6937 belonging to respondent no.1 coming from the
opposite direction, came in a rash and negligent manner and
dashed against the lorry driver Madivalappa, near Kuppalu
nursery at Chikkamagaluru due to which the said Madivalappa
sustained grievous injuries all over the body and succumbed to
the same while on treatment at KLE Hospital, Belagavi. The
said accident and the death of Madivalappa were the result of
rash and negligent driving of the bus by its driver. Further it is
stated that petitioner no.1 is the wife, petitioner nos.2 to 4 are
children, petitioner nos.4 and 6 are the parents of the
deceased. As the petitioners did not have independent source
of income, they were wholly dependent on the income of the
deceased who was the only earning member in the family. Due
to his untimely death, petitioners have suffered great mental
shock and agony and are confronting a huge financial crisis.
The deceased who possessed a lorry, was into transport
business earning Rs.40,000/- per annum. The petitioners spent
Rs.3,00,000/- for treatment but could not save madivalappa.
As the occurrence of the accident was the result of rash and
negligent driving of the bus by its driver, petitioners filed the
claim petition seeking compensation from the respondents no.1
and 2 who are the owner and insurer of the offending bus and
also from the respondent no.3 who is the insurer of the lorry
belonging to the deceased. On all these grounds, the claimants
sought to allow the claim petition.
3. In pursuance of the notice, respondents no.2 and 3
appeared through their counsel and filed their respective
written statements. Respondent no.1 did not turn up despite
being duly served with notice and he was placed exparte.
4. Respondent no.2 in its written statement denied all the
petition averments and contended that the instant petition is
not maintainable u/S 163-A of M.V. Act as the deceased was
himself owner of the lorry, earning Rs.40,000/- per month as
the accident was result of his own fault. It is also contended
that deceased Madivalappa had no valid and effective driving
licence to drive the said lorry on the day of occurrence of
accident. Hence, sought for dismissal of the claim petition.
5. Respondent no.3 in its written statement admitted that
the lorry belonging to the deceased was covered under policy of
insurance issued by it but denied the other petition averments.
It is contended that the petition is not maintainable u/S 163-A
of M.V. Act as the deceased was himself owner of the lorry
earning Rs.40,000/- per month as the accident was the result of
his own fault. Deceased Madivalappa had no valid and effective
driving licence to drive the said lorry on the date of accident.
On these grounds, sought to dismiss the claim petition.
6. Based on the pleadings, the tribunal has framed the
following issues.
1. Whether the petitioners prove that on 04.11.2017 at
about 2.15 a.m., when the deceased Madivalappa being
the driver of the Lorry bearing Reg. No. KA-25-D-4125
was proceeding in the said lorry on the NH-206, a Bus
bearing Reg. No. KA-20-C-6937 belonging to the
respondenet No.1 coming from the opposite direction,
came in rash and negligent manner and dashed against
the lorry driven by Madivalappa, near Kuppalu nursery at
Chikkamangaluru due to which the said Madivalappa
sustained grievous injuries all over the body and
succumbed to the same while on treatment at KLE
Hospital, Belagavi and same was the result of actionable
negligence on the part of the bus driver?
2. Whether the respondent No.2 proves that the deceased
Madivalappa had no valid and effective driving license so
as to drive the said lorry as on the date of accident?
3. Whether the petitioners are entitled for the
compensation? If so, to what quantum and from whom?
4. What award or order?
7. To prove the case of the petitioners, one witness was
examined as PW1, 11 documents were marked as Exs.P.1 to
P.11. On closure of petitioners' side evidence, one Ibrahim was
examined as RW1 and two documents were marked as Exs.R.1
and R2. Having heard arguments of both the sides, the
Tribunal has allowed the claim petition in part with costs and
awarded compensation of Rs.50,000/- only with simple interest
at the rate of 8% p.a. from the date of petition till the date of
deposit. Being aggrieved by this judgment and award passed
by the Tribunal, the appellants/ claimants have preferred this
appeal for enhancement of compensation.
8. Learned counsel for the appellants would submit that the
Tribunal has erred in awarding a meager compensation of
Rs.50,000/- with 8% interest from the date of petition till
deposit. The Tribunal has not properly awarded the
compensation towards transportation of dead body, loss of
estate, etc. It has not considered the loss of income. Without
assigning valid reasons, the income of the deceased is not
considered properly.
9. Further he would submit that the recent decision of the
Hon'ble Apex Court in the case of Ram Murti and others Vs.
Punjab State Electricity Board1 has held that the provisions
of Sec. 140 which formed a part of Chapter 10 of the Motor
Vehicles Act, 1988 were omitted by Act 32 of 2019.
Simultaneously, Chapter 11 was substituted of which Section
164 provides for payment of compensation in the case of death
in an amount of Rs.5 lakhs and in the case of grievous hurt of
Rs. 2.5 lakhs. Accordingly, the Hon'ble Apex Court has
extended the benefit of beneficial provisions which have been
enacted by the Parliament and awarded compensation of Rs.5
Civil Appeal No. 7143/2022 (arising out of SLP (C) No. 19719/2009 dated 11.10.2022
lakhs. Relying on this decision, learned counsel for the
appellants sought for compensation of Rs. 5 lakhs.
10. As against this, learned counsel Sri R.R. Mane, appearing
for respondent no.2-insurer of the bus would submit that the
Tribunal has not passed any award against respondent no.2 and
the Tribunal has rightly rejected the claim against the
respondent no.2 since during the course of cross examination
PW1 has admitted that income of the deceased was more than
Rs.20,000/- per month. Hence, the claim petition filed u/S
163-A of M.V. Act is not maintainable. The appellants have not
made out any grounds to interfere with the impugned judgment
and award passed by the Tribunal. On all these grounds sought
for dismissal of the appeal.
11. Learned counsel Sri S.K. Kayakamath for respondent
no.3-insurer of the lorry would submit that the claim petition
filed by the claimants is not maintainable in law as the income
of the deceased is more than Rs.40,000/- per annum. Further
he would submit that the accident occurred due to sole
negligence on the part of the deceased. Hence, legal
representatives of the deceased cannot seek compensation
against this respondent. He would fairly submit that as per the
policy of insurance pertaining to the lorry bearing Reg. No. KA-
25-D-4125, it was insured with the respondent no.3 and the
owner has paid an amount of Rs.100/- towards P.A. Cover for
owner-cum-driver for Rs. 2 lakhs. Accordingly, the insurance
company is ready to pay an amount of Rs. 2 lakhs only.
Learned counsel relied on the decision of the Hon'ble Apex
Court in the case of Oriental Insurance Co. Ltd., V.
Hansrajbhai V. Kodala and others2 and Deepal Girishbhai
Soni and Others Vs. United India Insurance Co. Ltd.,
Baroda3. On all these grounds sought for dismissal of the
appeal.
12. Having heard the arguments of both sides and on perusal
of original records and appeal papers, the following points
would arise for our consideration.
1) Whether the Tribunal is justified in framing issue no.1 to
prove rash and negligent act on the part of the driver of
the bus bearing Reg. No. KA-2--C-6937?
2) Whether the Tribunal is justified in awarding
compensation of Rs.50,000/- only?
3) Whether the appellants/claimants are entitled for
compensation of Rs.5 lakhs as per the decision of
Hon'ble Apex Court rendered in Civil Appeal No.
743/2022 in Ram Murti and others Vs. Punjab State
Electricity Board dated 11.10.2022?
4) What order?
(2001) 5 SCC 175
(2004) 5 scc 385
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13. Our findings to the above points are as under:
Point No.1 : In the negative
Point No.2 : In the negative
Point No.3 : In the affirmative
Point No.4 : As per final order for the following:
REASONS
14. Point No. 1: We have examined the materials placed
before the Court. The petitioners-claimants have filed petition
u/S 163-A of M.V. Act seeking compensation for the death of
Madivalappa who died in the accident. When the petitioners
have filed application u/S 163-A of M.V. Act, the Tribunal need
not frame the issue as to the rash and negligent act on the part
of the driver of the bus. Sec. 163-A of M.V. Act is a special
provision as to the payment of compensation on structured
formula basis. Sub Section (2) of Sec. 163-A of M.V. Act, 1988
contemplates that in any claim for compensation under Sub
Section (2) of Sec. 163-A of M.V. Act, the claimants shall not be
required to plead or establish that the death or permanent
disablement in respect of which claim has been made was due
to wrongful act or negligence or default of the owner of the
vehicle or vehicles concerned or of any other person.
15. The Tribunal has ignored the provision of sub Section (2)
of Sec. 163-A of M.V. Act, 1988 and frame the issue to prove
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the rash and negligent act on the part of the driver of the bus.
A finding is also rendered by the Tribunal as 'negative' that the
petitioners have failed to prove rash and negligent act on the
part of the driver of the bus which is not sustainable under law.
Both parties have not disputed the use and involvement of the
lorry bearing reg. no. KA-25-D-4125 and the bus bearing Reg.
No. KA-20-C-6937. In view of Sec. 163-A of M.V. Act, use and
involvement of vehicles is sufficient to claim compensation as
indicated in the second schedule by the claimants. Accordingly,
the Tribunal is not justified in framing issue no.1. Hence, we
answer issue no.1 in the negative.
16. Point Nos.2 and 3: The petitioners have averred in the
petition that deceased Madivalappa was self employed, he
possessed a lorry in his name, doing transport business and
earning Rs.40,000/- p.a. To substantiate the same, PW1-Smt.
Pramila, wife of the deceased, has stated the same in her
evidence. During the course of cross examination of PW1 she
has stated that her husband was earning about Rs.20,000/- per
month. On this admission made by PW1 both the counsel
appearing on behalf of respondents no.2 and 3 vehemently
submitted that the petition is not maintainable in law as the
income of the deceased was more than Rs.40,000/- per annum.
Except the stray admission of PW1 absolutely there is no legal
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evidence before this Court to come to the conclusion that
income of the deceased was more than Rs.40,000/- per annum
as contended by the respondents no.2 and 3. Therefore, the
arguments advanced on behalf of respondents no.2 and 3
cannot be accepted. Respondent No.3-insurer has not
preferred any appeal against the award passed by the Tribunal
awarding compensation of Rs.50,000/- u/S 140 of M.V. Act.
Hence, respondent no.3 is liable to pay an amount of
Rs.50,000/- with simple interest at the rate of 8% p.a. from the
date of claim petition till depositing the amount as awarded by
the Tribunal.
17. Ex.R.2-insurance policy of the respondent no.3 pertaining
to vehicle bearing Reg. No. KA-25-D-4125 reveals that the
policy was in force at the time of accident. The owner of
vehicle has paid an amount of Rs.15,365/- towards basic third
party liability; Rs.100/- P.A. Cover for owner cum driver-SI-
Rs.2,00,000/-; Rs.100/- towards LL For Operation/ Maintenance
For 2 persons and total premium of Rs.15,565/-; the final
premium of Rs.25,911/- is paid by the owner of the vehicle.
Though the insurance company is liable to pay an amount of
Rs.2 lakhs for the death of the owner of the vehicle under
contractual liability, the insurance company has not paid the
amount till this date. Fortunately, before this Court learned
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counsel for the insurer has fairly submitted that since owner
has paid an amount of Rs.100/- premium in this regard, the
insurance company is ready to pay an amount of Rs. 2 lakhs to
the petitioners as the policy covered the risk of the owner for
Rs.2 lakhs.
18. Considering the policy-Ex.R.2 and submission of the
learned counsel for the insurer it is just and proper to award
compensation of Rs.2 lakhs as per the policy and Rs.50,000/-
already awarded by the Tribunal which is not challenged by the
respondent no.3. In total, a sum of Rs.2,50,000/- shall be
payable by the respondent no.3 with interest at 8% p.a.
19. With regard to the decision relied by the learned counsel
for the appellant in Ram Murti (supra) is concerned, the
Hon'ble Apex Court has held that the provisions of Sec. 140
which formed a part of Chapter 10 of the Motor Vehicles Act,
1988 were omitted by Act 32 of 2019. Simultaneously, Chapter
11 was substituted of which Section 164 provides for payment
of compensation in the case of death in the amount of Rs.5
lakhs and in the case of grievous hurt of Rs. 2.5 lakhs. The
Hon'ble Apex Court has clearly held that they are inclined to
give to the appellants the benefit of beneficial provision which
have been enacted by the Parliament. Hence in modification of
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the order of the High Court, the Hon'ble Apex Court directed
that appellants shall be entitled to an amount of Rs.5 lakhs as
compensation.
20. Though the accident in question pertaining to the above
case is prior to substitution of Sec. 164 of Chapter 11 of the
M.V. Act, 2019, the Hon'ble Apex Court has granted
compensation of Rs. 5 lakhs under Section 164 of M.V. Act.
Relying on this judgment we are of the considered view that the
appellants are entitled for compensation of Rs. 5 lakhs.
Accordingly, we answer point no.2 in the negative and point
no.3 in the affirmative.
21. In the peculiar facts and circumstances of the case,
considering the liability of respondent no.3 as per the policy of
insurance-Ex.R.2 and the award passed by the Tribunal,
respondent no.3 is liable to pay compensation of Rs.2,50,000/-.
So also, considering the facts and circumstances of the case
and keeping in mind the old provision of Sub Section (2) of Sec.
163-A of M.V. Act and Sec. 164 of amended Act, 2019 and the
decision of Hon'ble Apex Court in Ram Murti (supra), we deem
it appropriate to direct the respondent no.2 to pay the
remaining amount of Rs.2,50,000/- with interest at 8% p.a.
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23. For the aforesaid reasons and discussions, we proceed to
pass the following:
ORDER
Appeal is allowed;
The judgment and award dated 31.05.2021 passed by the
learned IV Addl. Senior Civil Judge & Addl. M.A.C.T., Dharwad
M.V.C. No. 341/2018, is modified holding that appellants are
entitled for compensation of Rs.5 lakhs including Rs.50,000/-
awarded by the Tribunal with interest at 8% p.a. from the date
of petition till realization.
Respondents no.2 and 3 are directed to deposit a sum of
Rs.2,50,000/- each with interest at 8% p.a. from the date of
petition till realization. The said sum shall be deposited before
the Tribunal within 60 days from the date of award. After
depositing the amount the Tribunal shall disburse the same to
the appellants in accordance with law.
Draw award accordingly.
Send a copy of this judgment to the tribunal along with
original records, forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
bvv
