Karnataka High Court
Renuka Mahabaleshwar Bhat vs Azeez Rahman S/O Mohammad Shafi Shaikh on 4 March, 2024
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MFA No. 102120 of 2016
C/W. MFA No.102901/2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
R
DATED THIS THE 4TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 102120 OF 2016 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 102901 OF 2015 (MV-D)
IN MFA NO.102120/2016
BETWEEN:
1. SMT. RENUKA MAHABALESHWAR BHAT,
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O. KHB COLONY, SIRSI,
SIRSI TALUKA, DIST: KARWAR.
2. GANESH MAHABALESHWAR BHAT,
AGE: 29 YEARS, OCC: AGRICULTURIST,
R/O. KHB COLONY, SIRSI,
SIRSI TALUKA, DIST: KARWAR.
...APPELLANTS
(BY SRI. VINAYAK BHAT, ADV. FOR
SRI. S. V. YAJI, ADVOCATES)
Digitally signed AND:
by ROHAN
HADIMANI T 1. AZEEZ RAHMAN S/O. MOHAMMAD SHAFI SHAIKH
Location: HIGH AGE: 42 YEARS, OCC: BUSINESS,
COURT OF
KARNATAKA R/O. 562, KASTURABHA NAGAR,
SIRSI, SIRSI TALUKA, DIST: KARWAR.
2. SHRIRAM GENERAL INSURANCE CO. LTD,
REP BY-ITS BRANCH MANAGER,
E-8, RHCO INDUSTRIAL AREA
SITAPURA, JAIPUR, RAJASTHAN-302022.
...RESPONDENTS
(BY SRI. S. K. KAYAKMATH, ADV. FOR R2;
NOTICE TO RESPONDENT NO.1 HELD SUFFICIENT)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MV ACT, 1988 PRAYING TO CALL FOR THE RECORDS AND TO
MODIFY THE JUDGMENT AND AWARD DATED 18/04/2015 PASSED BY
THE ADDITIONAL M.A.C.T, SIRSI IN MVC 5/2013 AND ENHANCE THE
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MFA No. 102120 of 2016
C/W. MFA No.102901/2015
COMPENSATION AS PRAYED FOR BY ALLOWING THE APPEAL AND
PASS SUCH OTHER ORDER OR ORDERS AS THIS HON'BLE COURT
DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE
TO MEET THE ENDS OF JUSTICE AND EQUITY.
IN MFA NO.102901/2015
BETWEEN:
SHRIRAM GENERAL INSURANCE CO. LTD,
REPRESENTED BY ITS BRANCH MANAGER,
E-8, RHCO INDUSTRIAL AREA, SITA PURA,
JAIPUR, RAJASTHAN,
NOW REPRESENTED BY ITS
AUTHORIZED SIGNATORY,
SHRIRAM GENERAL INSURANCE COMPANY LTD,
NO.5/4, 3RD FLOOR, S. V. ARCADE,
BELEKAHALLI MAIN ROAD,
OPP: BENNURUGHATTA ROAD,
IIMB POST, BENGALURU-560076.
...APPELLANT
(BY SRI. S. K. KAYAKMATH, ADVOCATE)
AND:
1. SMT. RENUKA MAHABALESHWAR BHAT,
AGED ABOUT 54 YEARS.
2. GANESH MAHABALESHWAR BHAT,
AGED ABOUT 28 YEARS,
BOTH ARE R/O. KHB COLONY, SIRSI.
3. AZEEZ REHMAN S/O. MOHAMMAD SHAFI SHAIKH,
AGE: MAJOR, OCC: OWNER,
R/O. H.NO.562, NO.1,
KASTURBHA NAGAR, SIRSI.
...RESPONDENTS
(NOTICE TO R1 AND R2 SERVED,
NOTICE TO R3 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MOTOR VEHICLES ACT, 1988 PRAYING TO CALL FOR RECORDS,
HEAR THE PARTIES, AND ALLOW THE APPEAL AS PRAYED FOR BY
SETTING ASIDE THE IMPUGNED JUDGMENT AND AWARD DATED
18.04.2015 PASSED BY THE ADDITIONAL M.A.C.T, SIRSI IN MVC
NO.5/2013, WITH COST IN THE INTEREST OF JUSTICE AND EQUITY.
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MFA No. 102120 of 2016
C/W. MFA No.102901/2015
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though these appeals are listed for admission, with the
consent of learned counsel for the parties, they are taken up
for final disposal.
2. MFA No.102120/2016 is filed by the claimants
challenging the contributory negligence to an extent of 40%
saddled on the deceased as well as seeking enhancement of
compensation, whereas, the insurance company is also in
appeal in MFA No.102901/2015 challenging the liability as well
as quantum of compensation awarded under judgment & award
dated 18.04.2015 passed in MVC No.5/2013 by the Addl.
MACT, Sirsi (for short, 'Tribunal').
3. Brief facts leading to filing of these appeals are that
on 6.7.2012, one late Mahabaleshwar Krishna Bhat, being the
rider of motorcycle bearing registration No.KA-31/J-9818 was
proceeding near KHB colony on Sirsi-Hubli road. Truck bearing
registration No.KA-30-3522 was parked in a dangerous manner
without indication of signal. At that time, it was raining and the
deceased could not see the truck, which was negligently parked
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without any signal and he dashed to the truck from its behind.
As a result, the said Mahabaleshwar Krishna Bhat fell down and
sustained severe injuries to his head, legs, hands and other
parts of the body. Immediately, he was shifted to TSS
Hospital, Sirsi and in spite of best efforts of the doctor, he
succumbed to the injuries. It is averred that the deceased
Mahalbaleshwar was aged about 57 years, working as Music
teacher and earning Rs.3,300/- per month.
4. Before the Tribunal, Respondent No.2/Insurance
Company contested the proceedings by filing statement of
objections and denied the averments made in the claim
petition. It is further averred that the claim petition is liable to
be dismissed as not maintainable under Section 163-A of the
MV Act, 1988 as the deceased himself was responsible for the
accident and just to get compensation, the claimants have
falsely filed claim petition. Hence, sought for dismissal of the
claim petition.
5. The claimant No.2, son of the deceased
Mahabaleshwar, examined himself as PW1 and got marked the
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documents as Ex.P1 to P7. The respondents examined one
witness as RW1, but did not mark any document.
6. The Tribunal on scrutiny of entire material available
on record, allowed the claim petition in part awarding total
compensation of Rs.1,47,600/- with interest at 6% per annum
from the date of petition till realization. The claimants as well
as the insurance company are in appeals before this Court.
7. Heard the learned counsel Sri.Vinayak Bhat for
Sri.S.V.Yaji, learned counsel for the claimants and
Sri.S.K.Kayakamath, learned counsel for the Insurance
Company.
8. Learned counsel for the appellants/claimants
Sri.Vinayak Bhat in support of his appeal would submit that the
Tribunal committed an error in holding that the deceased has
contributed 40% to the occurrence of the accident in question,
without taking note of the fact that the claim petition was filed
under Section 163-A of the MV Act. He submits that when the
claim petition was filed under Section 163-A of the MV Act,
question of negligence cannot be looked into. Hence, he seeks
to modify the impugned judgment and award of the Tribunal by
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saddling the entire liability on the insurance company. He
further submits that the Tribunal committed an error in
assessing income of the deceased at Rs.3000 per month and he
seeks to consider the same at Rs.40,000/- per annum.
9. Per contra, learned counsel Sri.S.K.Kayakamath,
for appellant/Insurance Company in support of his appeal
submits that the Tribunal committed an error in fastening the
liability to an extent of 60% on the insurance company, which
is contrary to the statutory provisions of Section 163-A of the
MV Act, as no risk is contemplated under the insurance policy in
respect of self negligent accident. Insofar as quantum of
compensation, Sri.Kayakamath submits that the award of
compensation requires to be modified as per Second Schedule
of the MV Act by awarding appropriate compensation. Thus, he
seeks modification of the impugned judgment and award by
allowing the appeal filed by the insurance company.
10. Having heard the learned counsel for the parties
and on perusal of the appeal papers, the only point that would
arise of consideration in this appeal is whether the impugned
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judgment and award of the Tribunal requires to be interfered
with in the facts and circumstances of the case?
11. Answer to the above point would be in the
'affirmative' for the following reasons:
12. The parties to the proceedings do not dispute the
occurrence of the accident on 6.7.2012 resulting in death of
Sri.Mahabaleshwar Krishna Bhat, wife of appellant No.1 and
father of appellant No.2. It is also not in dispute that the
offending vehicle bearing registration No.KA-30-3522 belonging
to respondent No.1 was insured with respondent No.2/insurer.
It is also not in dispute that the legal heirs of the deceased
have filed claim petition under Section 163-A of the MV Act.
13. Section 163-A of the MV Act reads as under:
163-A. Special provisions as to payment of
compensation on structured formula basis.--
(1) Notwithstanding anything contained in this Act or in any other
law for the time being in force or instrument having the force of law,
the owner of the motor vehicle of the authorised insurer shall be
liable to pay in the case of death or permanent disablement due to
accident arising out of the use of motor vehicle, compensation, as
indicated in the Second Schedule, to the legal heirs or the victim, as
the case may be.
Explanation.--For the purposes of this sub-section,
"permanent disability" shall have the same meaning and extent as in
the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section (1), the
claimant shall not be required to plead or establish that the death or
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permanent disablement in respect of which the claim has been made
was due to any wrongful act or neglect or default of the owner of the
vehicle or vehicles concerned or of any other person.
14. The Hon'ble Apex Court in the case of United India
Insurance Company Limited Vs. Sunilkumar & Another1,
at paragraph-8 of the judgment held as under:
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 thereunder 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 163A(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 163A of the Act
to be contemplating any such situation would go contrary to
the very legislative object behind introduction of Section
163A 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 was taking an unduly long time.
In fact, to understand Section 163A of the Act to permit
the Insurer to raise the defence of negligence would be to
bring a proceeding under Section 163A of the Act at par with
the proceeding under Section 166 of the Act which would not
only be self-contradictory but also defeat the very legislative
intention. (Emphasis supplied)
15. The Hon'ble Apex Court in the case of Shivaji &
Another Vs. Divisional Manager, United India Insurance
2018 ACJ 1
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Company Limited & Others2, reiterates the enunciation of
law laid down by it in Sunilkumar's case referred supra. The
relevant paragraph of the said judgment reads as under:
5. The issue which arises before us is no longer res integra
and is covered by a recent judgment of three judges of this
Court in United India Insurance Co. Ltd. v. Sunil Kumar &
Anr., wherein it was held that to permit a defence of negligence
of the claimant by the insurer and/or to understand Section
163A of the Act as contemplating such a situation, would be
inconsistent with the legislative object behind introduction of
this provision, which is "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 was taking an unduly long time". The Court
observed that if an insurer was permitted to raise a defence of
negligence under Section 163-A of the Act, it would "bring a
proceeding under Section 163-A of the Act at par with the
proceeding under Section 166 of the Act which would not only
be self- contradictory but also defeat the very legislative
intention". Consequently, it was held that in a proceeding
under Section 163-A of the Act, the insurer cannot raise any
defence of negligence on the part of the victim to counter a
claim for compensation.
16. On perusal of the provision of law and also
decisions of the Hon'ble Apex Court referred supra, it is crystal
clear that in a proceedings under Section 163-A of the MV Act,
the insurer cannot raise any defence of negligence on the part
of the victim to counter a claim for compensation. Hence, this
Court is of the considered view that the Tribunal has committed
an error in fastening the liability on the deceased to an extent
of 40%. Keeping in mind the law laid down by the Hon'ble
AIR 2018 SC 3705
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Apex Court in the judgment referred supra and also provision of
law, this Court is of the considered view that the entire liability
is to be saddled on the insurance company to pay
compensation to the claimants.
17. Insofar as quantum of compensation, the Tribunal
has assessed income of the deceased at Rs.3,000/- per month.
As per Second Schedule appended to the MV Act, maximum
income of deceased is fixed at Rs.40,000/- per annum. Hence,
taking note of the same, this Court assesses the income of the
deceased at Rs.40,000/- per annum. There is no dispute with
regard to age of the deceased as 57 year and multiplier of 9.
Thus, the claimants would be entitled to compensation under
the head of loss of dependency as under:
Rs.40,000 x 9 x 2/3rd = Rs.2,40,000/-
18. The Tribunal awarded a sum of Rs.10,000/- under
the head of loss of consortium, Rs.10,000/- towards funeral
expenses and Rs.10,000/- towards loss of love and affection,
which are on the higher side and contrary to Second Schedule
to the MV Act. As per Second Schedule of the MV Act, the
appellants/claimants are entitled to Rs.2,000/- towards
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funeral expenses, Rs.5,000/- towards loss of consortium and
Rs.2,500/- towards loss of estate.
19. Thus, the claimants would be entitled to modified
compensation on the following heads:
Particulars Amount
(in Rs.)
Loss of dependency 2,40,000/-
Loss of estate 2,500/-
Funeral expenses 2,000/-
Loss of consortium 5,000/-
Total 2,49,500/-
Thus, the claimants are entitled to total compensation of
Rs.2,49,500/- as against Rs.2,46,000/- awarded by the
Tribunal.
20. It is to be noted that this Court vide order dated
4.3.2024, while condoning the delay of 343 days in filing the
appeal, made an observation that the appellants/claimants
would not be entitled for interest for the delayed period, in case
if they succeed in the appeal. Hence, the claimants would not
be entitled for the interest on the enhanced compensation for
the aforesaid delayed period.
21. In the result, I proceed to pass the following:
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ORDER
a) Both appeals stand allowed in part.
b) The impugned judgment and award of the
Tribunal is modified to an extent that the
claimants would be entitled to total
compensation of Rs.2,49,500/- as against
Rs.2,46,000/- awarded by the Tribunal.
c) The enhanced compensation amount shall carry
interest at the rate of 6% per annum from the
date of petition till the date of payment.
d) The appellant/insurance company is liable to
pay entire compensation amount and is directed
to deposit the same with accrued interest
before the Tribunal within a period of six weeks
from the date of receipt of certified copy of this
judgment.
e) Out of total compensation amount of
Rs.2,49,500/-, claimant No.1/wife of the
deceased would be entitled to a sum of
Rs.2 lakhs and claimant No.2/son of the
deceased would be entitled to remaining
amount of Rs.49,500/-, which shall be released
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in his favour. Out of the compensation awarded
to claimant No.1/wife of the deceased, 50%
shall be kept in fixed deposit in her name in any
nationalized bank for a period of three years
with liberty to her to withdraw periodical
interest accrued thereon and remaining 50%
shall be released in her favour.
f) Needless to say that the appellants/claimants
would not be entitled to interest on the
enhanced compensation amount for the
aforesaid delayed period. Registry to take note
of the same while drawing award.
g) The amount in deposit made by the
appellant/insurer be transmitted to the Tribunal
forthwith.
h) Draw modified award accordingly.
Sd/-
JUDGE
JTR
