Karnataka High Court
The Branch Manager vs Shivappa @ Shivanand S/O Basappa ... on 8 October, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
M.F.A. NO.31256/2012 (MV)
Between:
The Branch Manager
The Oriental Insurance Co. Ltd.
S.S. Front Road, Bijapur
Its represented by Divisional Manager
... Appellant
(By Sri J. Augustin, Advocate)
And:
1. Shivappa @ Shivanand
S/o Basappa Helabar
Aged about 26 years, Occ: Driver
R/o Athani Galli, Bijapur
2. Anand S/o Amogi Chincholi
Aged about 37 years, Occ: Business
R/o MIG-2, 107, W.No.5
Adarsh Nagar, Bijapur
... Respondents
[Sri Sanganabasava B. Patil, Adv. for R1;
Sri A. Syed Habeeb, Adv. for R2 (demised)]
This MFA is filed under Section 173(1) of the Motor
Vehicles Act, praying to allow the appeal and modify the
judgment and award dated 23.01.2012 passed by the MACT
No.VII at Bijapur, in MVC No.735/2009 and consequently
2
discharge the appellant from its liability to pay the
compensation and also reduce the compensation suitably.
This appeal coming on for final hearing this day, the
Court delivered the following:
JUDGMENT
This appeal is filed by the insurance company under Section 173(1) of the Motor Vehicles Act (for short 'MV Act'), challenging the judgment and award dated 23.01.2012 passed in MVC No.735/2009 by the Motor Accident Claims Tribunal No.VII, Bijapur (hereinafter referred to as 'the Tribunal').
2. Brief facts of the case are that, on 26.02.2008 at about 15 hours on Khanapur londa on NH 04 road, respondent No.1 herein was driving the truck bearing No.KA28/A5199 in a rash and negligent manner, due to which the accident was taken place and in the said accident, he has sustained injuries. Therefore, he has filed a claim petition before the Tribunal under Section 163A of the MV Act and the Tribunal has awarded a total compensation of 3 Rs.2,05,400/- along with interest at 6% p.a. from the date of petition till realization. Aggrieved by the same, the appellant has filed the present appeal.
3. Heard the learned counsel for the appellant and learned counsel for respondent No.1.
4. Sri J. Augustin, learned counsel for the appellant vehemently submitted that respondent No.1- claimant himself is tort feasor, as he was driving the truck in a rash and negligent manner and it was met with an accident and in the said accident he sustained injuries. Therefore, the complaint and FIR are registered against respondent No.1 himself and during trial, in the course of cross-examination, respondent No.1 himself has admitted that as on the date of accident he was driving the truck and the police have filed charge sheet against him and the criminal case against him is still pending. Therefore submitted that when this being the factual matrix, the respondent No.1 himself is 4 responsible for the accident and he is a tort feasor of causing accident, then the claim petition filed under Section 163A of the MV Act is not maintainable. However, the Tribunal without appreciating this legal position has wrongly awarded compensation to respondent No.1. Therefore, prays to reverse the judgment and award passed by the Tribunal on this ground.
5. On the other hand, learned counsel for respondent No.1 vehemently contended that the claim petition is filed on the principle of no fault liability and for claiming compensation on structured formula basis. Therefore, the appellant-insurer cannot take defence of negligence on the part of the driver to counter a claim for compensation. Therefore submitted that when the claim petition is filed on the principle of no fault liability, the rashness and negligence aspect cannot be determined, much less such contention cannot be taken 5 by the insurance companies and the only factor to be considered while awarding compensation under Section 163A of the MV Act is, whether there was accident and in the said accident the claimants have sustained injuries and involvement of the vehicle in the accident. In this regard, while considering this aspect, the Tribunal has rightly awarded compensation which needs no interference. Therefore prays to dismiss the appeal.
6. I place reliance on the judgment of the Hon'ble Apex Court in the case of Shivaji and another v. Divisional Manager, United India Insurance Co. Ltd. and others reported in AIR 2018 SC 3705 involving the similar set of facts and circumstances. In the said case, the facts are that, the deceased was driving the car and the car dashed to a truck. When the deceased himself was driving the car resulting in his death, then the appellants being the parents of the 6 deceased have filed a claim petition under Section 163A of the MV Act. The Tribunal has allowed the claim petition filed by the parents of the deceased and awarded compensation. Then the insurer has preferred an appeal before this Court and this Court has allowed the contention of the insurer and set aside the judgment of the Tribunal by forming an opinion that the car driver (deceased) himself was tort feasor and due to his rashness and negligence, the accident was occurred and hence, the claim petition filed by his legal heirs is not maintainable. Therefore, set aside the judgment and award passed by the Tribunal. Then, the parents of the deceased-car driver have preferred an appeal before the Hon'ble Apex Court and the Apex Court was pleased to observe that the issue which arises before them is no longer res integra and is covered by the judgment of three judges in United India Insurance Co. Ltd. v. Sunil Kumar & Anr. (AIR 2017 SC 5710) and therefore has reversed the order of this Court and 7 restored the judgment and award passed by the Tribunal and accordingly the compensation granted by the Tribunal was upheld.
7. The Hon'ble Apex Court in Shivaji's case (supra), at para 5, was pleased to observe as follows:
"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. (AIR 2017 SC 5710), 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 8 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".
8. In the present case also having similar set of facts and circumstances as that of the above cited judgment, respondent No.1 was driving the truck and while he was on his wheel, the truck met with an accident and in the said accident respondent No.1 sustained injuries and on account of injuries sustained in the accident, respondent No.1 has filed a claim petition and it was allowed in part by the Tribunal. In the above cited case, the deceased was driving the car and met with an accident and died and the claim petition filed by the legal heirs of the deceased was 9 allowed and ultimately it is confirmed by the Hon'ble Apex Court. In the present case also, respondent No.1 was driving the truck, met with an accident and sustained injuries. Then upon filing of claim petition under section 163A of the MV Act, compensation was awarded. Therefore, the principle laid down by the Hon'ble Apex Court in the said case is squarely applicable to the case on hand.
9. The Full Bench of Hon'ble Apex Court in the case between United India Insurance Company Limited v. Sunil Kumar and another [(2019) 12 Supreme Court Cases 398] were pleased to consider the point that whether in a claim proceedings under Section 163-A of the Motor Vehicles Act, 1988 is it open for the Insurer to raise the defence/plea of negligence. The Hon'ble Apex Court were pleased to laid down the principle of law in this regard, directly on the point 10 involved in the present case and at paragraphs 8 and 9 were pleased to observe as follows :-
"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 163-A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163-A 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 were taking an unduly long time. In fact, to understand Section 163-A of the Act to permit the Insurer to raise the defence of negligence would be to bring a proceeding under Section 163-A of the Act on a par with the proceeding under Section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention.
9. For the aforesaid reasons, we answer the question arising by holding that in a proceeding under Section 163-A of the Act, it is not open for the Insurer to raise any defence of negligence on the part of the victim."11
Therefore, it is the principle of law laid down by the Hon'ble Apex Court (supra) that in proceedings under Section 163-A of the M.V.Act, it is not open for the Insurer to raise any defence of negligence on the part of the victim. In the present case also the appellant could not maintain such plea of negligence. Therefore, the principle of law laid down therein is squarely applicable to the case on hand. Hence, the present appeal is liable to be dismissed.
10. The claim petition is filed under Section 163A of the MV Act on two principles, one is on the principle of no fault liability basis and another one is for determination of compensation on structured formula basis as per Second Schedule appended to the MV Act. Therefore, when the insurer is not permitted to take defence or plea of negligence, the contention urged by the learned counsel for the appellant that respondent No.1 himself is a tort feasor and therefore he is not entitled for compensation cannot be stated to be having 12 any merit. Therefore, under these circumstances, categorizing the respondent No.1 as tort feasor in causing the accident and denying the claim filed invoking the provisions under Section 163A of the MV Act is not correct. Therefore, even though respondent No.1 was driving the truck and while he was driving the truck he caused accident, but upon sustaining injuries in the said accident still respondent No.1 is entitled for compensation invoking the provision under Section 163A of the MV Act and accordingly the Tribunal has rightly awarded the compensation and the judgment and award of the Tribunal is perfectly justifiable and is on the principle of law laid down by the Hon'ble Apex Court stated supra. Therefore, the present appeal is liable to be dismissed as being devoid of merits and is accordingly dismissed.
The amount in deposit before this Court is ordered to be transmitted to the Tribunal forthwith. 13
Registry is directed to send back the trial court records.
Sri J. Augustin, learned counsel for respondent No.2 is directed to file vakalath within four weeks from today.
Sd/-
JUDGE LG