Karnataka High Court
The Divisional Manager, vs Smt. Kamalamma W/O Redeppa on 30 November, 2018
1
R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF NOVEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE P.G.M.PATIL
MFA No. 32591/2011 (MV)
&
MFA No.200599/2014 (MV)
MFA NO.32591/2011
BETWEEN:
The Divisional Manager,
United India Insurance Company Ltd.,
Near Gandhi Chowk,
Raichur.
... Appellant
(By Sri Sanjay M.Joshi, Advocate)
AND:
1. Smt. Kamalamma W/o Redeppa
Age:32 years, Occ: Household,
R/o Karadakalla Tanda,
Tq. Lingasugur,
District: Raichur-584101.
2. Smt. Shanta @ Shantawwa
W/o Basalingappa
age:57 years, Occ: Household,
R/o Karadakalla Tanda,
Tq. Lingasugur,
District Raichur-584101.
2
3. Suresh S/o Billamraj,
Age:major, Occ: Business,
R/o Karadakal,
Tq. Lingasugur,
District: Raichur-584101.
... Respondents
(Sri Babu H.Metagudda, Advocate for R1 & R2)
(Notice to R3 held sufficient V/O Dt.02.11.2018)
This MFA filed under Section 173 (1) of MV Act praying
to allow the appeal and set aside the impugned judgment
and award dated 26.07.2011 passed by the Motor Accident
Claims Tribunal, Lingasugur in MVC No.179/2010 holding
the appellant liable to pay the compensation determined by
it at Rs.4,19,000/- and interest thereon @ 6% p.a. from the
date of petition till realisation.
MFA NO.200599/2014
BETWEEN:
The Divisional Manager,
United India Insurance Company,
Division Office,
Opposite: Gorakshana Tilaknagar,
Main Road, Latur,
Represented by:-
The Divisional Manager,
United India Insurance Company Ltd.,
Jawali Complex, Super Market Road,
Gulbarga.
...Appellant
(By Sri Sanjay M.Joshi, Advocate)
3
AND:
1. Rehanabee W/o Syed Allahbaksh,
Aged: 42 years, Occ: Household,
2. Syed Allahbaksh S/o Syed Kareemsab
Age:47 years, Occ:Labour,
3. Neelu Beepasha D/o Syed Allahbaksh,
Age:19 years, Occ:Student,
4. Syed Afroz S/o Syed Allahbaksh,
Age:18 years, Occ: Student,
All R/o village Bhatambra,
Tq. Bhalki, Dist. Bidar-585402.
5. Azeemuddin S/o Basheeruddin
Age:major, Occ: Contractor &
Business, R/o Bhatambra,
Tq. Bhalki, Dist. Bidar-585402.
(Owner of Hero Honda motorcycle
No.KA-39-J-8328)
...Respondents
(Sri Babu H.Metagudda, Advocate for R1 to R4)
(R-5 served, unrepresented)
This MFA filed under Section 173 (1) of MV Act praying
to allow the appeal and set aside the impugned judgment
and award dated 1.2.2014 passed in MVC No.346/2012 by
the II Additional Motor Accident Claims Tribunal and
Additional District and sessions Judge at Bidar sitting at
4
Bhalki awarding compensation of Rs.8,06,440/- with
interest at 6% p.a. from the date of petition till its deposit.
These appeals having been heard on 13.11.2018
and 15.11.2018 respectively and reserved for judgment
and coming on for pronouncement of judgment this day,
the Court delivered the following:
JUDGMENT
Though the MFA 32591/2011 was listed for admission, with the consent of learned counsel for the parties, heard for final disposal.
2. These two appeals are filed by the insurer challenging the awards passed under Section 163(A) of Motor Vehicles Act (Hereinafter referred as ' the Act' for short) on the ground that the claim petitions were not at all maintainable.
3. Since common questions of law and facts are involved in both the appeals, they are taken together for disposal by this common judgment.
5
4. MFA No.32591/2011 is filed by the insurer- the Divisional Manager, United India Insurance Company Ltd. Challenging the award dated 26.07.2011 passed by the Motor Accident Claims Tribunal at Lingasugur in MVC No.179/2010.
5. It is the case of the claimants in the said case that on 23.05.2010 at 9.00 p.m. the deceased Reddeppa, the husband and son of the claimants and one Tippanna were proceeding towards Gorebal Tanda from Karadakal Tanda on motorcycle bearing No.KA-36- L-3566. The deceased Reddeppa was riding the motorcycle. When they were proceeding near Kasaratti Tanda, in order to avoid the accident with a dog which suddenly came across the road, the deceased took the motorcycle by the side of the road which fell into a ditch, due to which Reddeppa sustained grievous injuries and later succumbed to the injuries while he was under treatment at OPEC hospital. Thereafter, the 6 wife and mother of the deceased filed petition under Section 163(A) of the Act claiming compensation of Rs.7,00,000/-. They have further averred in the petition, that the deceased was doing labour work and earning Rs.40,000/- per annum and they were depending on his earnings. It is also stated that the motorcycle belonged to respondent No.1 and the same was insured with respondent No.2.
6. Respondent No.1 remained absent and placed exparte. Respondent No.2 appeared before the Tribunal and filed written statement denying the liability itself. It was further contended that the accident occurred due to own negligence of the deceased and as such, the insurer is not liable to pay the compensation.
7. Based on the pleadings of the parties, the Tribunal framed issues and received evidence produced by the claimants and passed the impugned award 7 granting compensation of Rs.4,19,000/- and the liability was saddled on the respondent No.2 insurer.
8. Aggrieved by the same, the insurer is before this Court in MFA No.32591/2011.
9. MFA No.200599/2014 is filed by the same insurer. The claimants being mother, father, sister and brother filed claim petition in MVC No.346/2012 under Section 163(A) of the Act before the II Addl. MACT and Additional District & Sessions Judge at Bidar sitting at Bhalki claiming compensation for the death of Syed Feroz in the accident that occurred on 17.03.2012. It is stated that the respondent No.1 is the owner and respondent No.2 is the insurer of the offending Hero Honda motorcycle bearing No.KA-39-J-8328. Deceased Syed Feroz was working under respondent No.1 and on 17.03.2012 in order to attend the work, the deceased was proceeding on the said motorcycle and when he was so proceeding on Halsi-Bhatambra road, near Inchur at 8 about 10.30 p.m., by that time one bus came from the opposite direction in a rash and negligent manner and due to flash headlight, the deceased took motorcycle by the side of the road, it hit to the guard stone of the road due to which he fell down and sustained grievous injuries all over the body. Initially he was shifted to Sree hospital, Bidar, thereafter Medinova hospital, Hyderabad where he was inpatient from 18.03.2012 to 12.04.2012. He was referred to Gandhi hospital, Secundrabad where he was inpatient from 12.04.2012 to 18.04.2012 and while under treatment he succumbed to injuries on 18.04.2012. The claimants have stated that Syed Feroz was hale and healthy, aged about 20 years and was earning Rs.3,300/- per month by way of salary. They have lost their bread earner on whom they were depending.
10. Respondent Nos.1 and 2 put in their appearance before the Tribunal. Respondent No.1 filed 9 written statement admitting that the deceased was working under him as his employee. He further stated that motorcycle was duly insured with respondent No.2. Therefore, the respondent No.2 is liable to pay compensation. Respondent No.2 filed written statement denying its liability contending that the accident occurred due to own negligence of the deceased, which is cause for the death of deceased. Therefore, respondent No.1 himself is responsible for the impact in question.
11. Based on the pleadings of the parties, the Tribunal framed issues and received evidence produced by the claimants and respondent No.2. After hearing both sides, the Tribunal allowed the claim petition in part awarding compensation of Rs.8,06,440/- with interest @ 6% p.a. The insurer has questioned the said judgment and award in MFA No.200599/2014. 10
12. Having heard the learned counsel for both the parties in both appeals, the following question of law arises for consideration:
" Whether the Motor Accident Claims Tribunals ignored the settled position of law in the case of Ningamma & another Vs. United India Insurance Company Ltd. and illegally awarded compensation to the claimants?"
13. The learned counsel for the appellant- insurance company relying on the decision of the Hon'ble Supreme Court in Civil Appeal No.3538/2009 Ningamma & Anr. Vs. United India Insurance Co. Ltd. and decision of this Court in MFA No.4152/2005 (MV) United India Insurance Company Vs. Smt. Ningamma and another decision reported in 2001 SCC L & S page 1121 Steel Authority of India Vs. National Waterfront Workers & Others submitted that the claim petitions under Section 163-A of the Act is not maintainable where the accident occurred due to own negligence of 11 the victim and that the rider of the motorcycle in the present cases stepped into the shoes of the owner and therefore, the owner-insured himself cannot claim compensation against the owner of the vehicle and insurer.
14. Per contra, the learned counsel for the respondents relying on the decision of the Hon'ble Supreme Court reported in 2007 Karnataka M.A.C. 487 (SC) in the case of Oriental Insurance Company Ltd. Vs. Meena Variyal and others and the recent decision of the Hon'ble Supreme Court reported in 2018 AIAR (Civil) 803 in the case of Shivaji and Anr. Vs. Divisional Manager, United India Insurance Co. Ltd. and Ors., submitted that, in a claim petition under Section 163-A of the Act question of pleading and proving negligence does not arise and that it is a special provision, the question of negligence does not arise and the only 12 question of involvement of the vehicle has to be considered.
15. The Hon'ble Apex Court in the case of Ningamma and another Vs. United India Insurance Company Ltd. in Civil Appeal No.3538/2009 has exhaustively dealt with the claim petition under Section 163-A of the Act. The facts involved in the said case are also similar to the cases on hand. In Ningamma's case, the claimants who are wife and son of the deceased Ramappa filed claim petition under Section 163-A of the Act. It was pleaded by them that on 9.9.2000 the deceased Ramappa was travelling on Hero Honda motorcycle which he borrowed from its real owner for going from Ilkal to his native place Gudur (SB) and on the way a bullock cart suddenly stopped and Ramappa who was proceeding on the motorcycle dashed against the bullock cart which was carrying iron rod, due to which he sustained fatal injuries and succumbed to the 13 injuries while undergoing treatment. The claim petition was allowed by the MACT-VI, Bijapur and awarded compensation of Rs.2,59,800/-. Aggrieved by the same, the insurance company preferred appeal before this Court in MFA No.4152/2005 (MV) in which this Court allowed the appeal holding that the claim petition filed before the Tribunal was not maintainable, as there was no tort-feasor involved and also held that the claim under Section 163-A of the Act was barred when the income of the claimant is stated to be above Rs.40,000/- per annum. Consequently, this Court set aside the judgment and award passed by the Tribunal. The Hon'ble Apex Court in the above referred Civil Appeal preferred by the claimants considered the provisions of Section 163-A of the Act. It is observed by the Hon'ble Apex Court in para-14 of the said decision as under;
" Section 163-A of the MVA was inserted by Act 54 of 1994 by way of a social security 14 scheme. It is needless to say that the said provision is a code by itself. The said provision has been inserted to provide for a new predetermined structured formula for payment of compensation to road accident victims on the basis of age/income of the deceased or the person suffering permanent disablement. In view of the language used in said section there could be no manner of doubt that the said provision has an overriding effect as it contains a non obstante clause in terms whereof the owner of the motor vehicle or the authorised insurer is liable to pay compensation in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be."
16. It is further observed that " In order to prove a claim of this nature, the claimant would not be required to plead or establish that the death or permanent disablement in respect of which the claim 15 has been made was due to any wrongful act or neglect or default of the owner of the vehicle concerned." It is further observed that the " liability under section 163-A of MVA is on the owner of the vehicle. So a person cannot be both, as owner and as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MV Act." It is also held that the deceased rider of the motor bike steps into the shoes of the owner insured. Therefore, the claim petition under Section 163-A of the Act is not maintainable. The Hon'ble Apex Court further held that the legal representatives of the deceased who have stepped into the shoes of owner of the vehicle could not have claimed compensation under Section 163-A of the Act. The Hon'ble Apex Court passed an order remanding the said case to this Court to give its decision on the other issues as to whether the claimants are entitled for just compensation under Section 166 of the Act. Therefore, it is crystal clear that 16 the claim petition under Section 163-A of the Act is not maintainable where the owner of the vehicle or his legal representatives are claiming compensation or in the case where the claimants step into the shoes of the owner of the vehicle.
17. After remand of the case in United India Insurance Company Ltd. Vs. Smt. Ningamma & others in MFA No.4152/2005 (MV) decided on 29.09.2010 this Court considered the claim as to whether the claimants are entitled for "Just Compensation" under any other provisions of the Act. Finally this Court held that the claimants are entitled for compensation of Rs.50,000/- as provided under Section 140 of the Act.
18. The learned counsel for the respondents- claimants has placed reliance on the decision of the Hon'ble Apex Court in Civil Appeal No.9694/2013 in the case of United India Insurance Co. Ltd. Vs. Sunil Kumar and Another decided on 24.11.2017. In this 17 case, the Hon'ble Apex Court has ruled that " in a proceeding under Section 163A of the Act it is not open for the insurer to raise any defence of negligence on the part of the victim."
19. Similar proposition of law is laid down by the Hon'ble Apex Court in case of Shivaji and Another Vs. Divisional Manager, United India Insurance Co.Ltd. and Others reported in 2018 AIAR (Civil) 803. In this case, the Hon'ble Apex Court held that, permitting a defence of negligence of the claimant by the insurer and/or to understand Section 163-A 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 Hon'ble Apex Court observed that if an 18 insurer was permitted to raise a defence of negligence under Section 163A of the Act, it would "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". Consequently, it was held that in a proceeding under Section 163A of the Act, the insurer cannot raise any defence of negligence on the part of the victim to counter a claim for compensation.
20. From the above decision it is clear that the insurer cannot be permitted to raise the defence of negligence on the part of the victim in a claim petition under Section 163-A of the Act.
21. On the basis of the above decisions of Hon'ble Apex Court, it is clear that, two aspects are involved in a claim petition under Section 163-A of the Act. Firstly, Section 163-A of the Act is a special provision as to payment of compensation on structured 19 formula basis. The compensation will be awarded in terms of the schedule without calling upon the victim or his dependents to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle. The insurer cannot be permitted to raise a defence of negligence under Section 163-A of the Act. Second aspect of the matter is that the liability under Section 163-A of the Act is on the owner of the vehicle. Therefore, a person cannot be both, as owner and also a recipient with respect to claim. It is also necessary to hold that, in the case of death of a rider or driver of the vehicle which was borrowed from the real owner, the legal representative of the deceased would step into the shoes of the owner of the motor vehicle and as such they cannot maintain a claim petition under Section 163-A of the Act.
22. In view of the above, the impugned awards passed in both cases are liable to be set aside and it has 20 to be held that the claim petitions were not maintainable under Section 163-A of the Act for the reason that the claimants in both the cases stepped into the shoes of owner of the vehicle, since the vehicle was borrowed from the real owner of the vehicle.
23. It is also necessary to mention here that the Tribunal in both the cases has not followed the schedule to the Act for the purpose of awarding structured formula compensation. Since the awards under challenge are being set aside, this question need not be looked into further.
24. The Hon'ble Apex Court while remanding the matter in the case of Ningamma & Another Vs. United India Insurance Co. Ltd., directed this Court to deal with the issues involved in the said case and consider whether the claimants are entitled for just compensation under Section 166 of the Act or any other provisions of the Act. After remand, this Court 21 considered the applicability of the provisions of the Act for awarding compensation if the claimants are entitled to and this Court invoked the provisions of Section 140 of the Act and awarded compensation of Rs.50,000/- to the claimants by judgment dated 29.09.2010 passed in MFA No.4152/2005 (MV). This Court observed that a party should not be deprived from getting just compensation in case the claimant is able to make out a case under any provision of law. On such observation, compensation of Rs.50,000/- was awarded under Section 140 of the Act.
25. In the cases on hand, though the impugned awards are liable to be set aside, it is just and necessary to award compensation of Rs.50,000/- to the claimants in both the cases as provided under Section 140 of the Act. Hence, the question of law is answered accordingly.
26. In the result, both the appeals in MFA No.32591/2011 and MFA No.200599/2014 are 22 disposed of in the above terms. The judgments and awards in MVC No.179/2010 and MVC No.346/2012 are set aside. However, the appellant-insurance company is directed to pay Rs.50,000/- to the claimants in both the cases mentioned above as if the claim is made under Section 140 of the Act. Thus, the claimants are at liberty to withdraw the amount in deposit. Excess amount if any deposited by the Insurance Company shall be refunded to it.
Sd/-
JUDGE NSP