Karnataka High Court
The Branch Manager, The New India ... vs Gangabai W/O Shivgond Kori on 23 September, 2020
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.KRISHNA BHAT
M.F.A.No.31623/2012 (MV)
BETWEEN:
The Branch Manager, The New India
Insurance Co. Ltd., Bijapur, Policy No.
670906/31/08/01/00001650 valid from
04-08-2008 to 03-08-2009
Now Represented by its Asst. Manager,
Regional Office, Hubli
... Appellant
(By Sri Sanjay M. Joshi, Advocate for Appellant)
AND:
1. Gangabai W/o Shivgond Kori,
Age: 63 years, Occ: Nil,
2. Jayashree W/o Suresh Kori,
Age: 33 years, Occ: Household work
3. Saraswati D/o Suresh Kori,
Age: 12 years, M/G by petitioner No.2
4. Narasappa S/o Suresh Kori,
Age: 10 years, M/G by petitioner No.2,
All are R/o Nidoni, Tq & Dist. Bijapur.
2
5. Chandrashekar S/o Sharanabasappa Indi,
Aged: 48 years, Occ: business, R/o Near
Amir talkies, Bijapur.
... Respondents
(By Sri Sanganabasava B. Patil, Advocate for R1 to R4;
Notice to R5 is dispensed with V/o. dated. 17/12/2013)
This MFA is filed under Section 173(1) of Motor
Accident Claims Tribunal praying to call for the records
in MVC No. 1185 of 2009 on the file of the Presiding
Officer, Fast Track Court-I/II, Bijapur and set aside and
modify the Judgment and Award dated 03.02.2012 by
allowing this appeal with costs and grant such other
relief and further reliefs, as this Hon'ble Court deems fit
to grant in the facts and circumstances of the case, in
the interest of justice and equity.
This appeal coming on for Final Hearing this day,
the Court delivered the following:
JUDGMENT
This is an appeal filed by the Insurance Company calling in question the correctness of the judgment and award in MVC No.1185/2009 dated 03.02.2012 by the learned MACT and FTC-I/II at Vijaypur. 3
2. Brief facts are that the deceased was riding his motorcycle bearing registration No.KA-28/K-2573 on 26.03.2009 and at about 7.45 p.m. when he came near Tikota village on Vijaypur - Tikota road, the deceased dashed his motorcycle to a truck bearing registration KA-28/A-6777 and due to the injuries suffered in the accident he died and other claimants suffered injuries. In the claim petition filed by his dependents, learned Tribunal below has awarded a compensation of Rs.3,40,000/- with interest at 6% per annum from the date of petition till the date of realization.
3. Learned counsel appearing for the appellant/Insurance Company with which the truck bearing registration No.KA-28/A-6777 was insured submits that charge sheet is against the deceased himself and since he was tortfeasor, he is not entitled to maintain a claim petition. Alternatively, he submitted that since the accident has taken place with the 4 involvement of two vehicles, the liability should be apportioned equally between the owners and insurers of both the vehicles.
4. I have heard learned counsel appearing for the claimants/respondent Nos.1 to 4.
5. There is no dispute about the fact that the claim petition was filed under Section 163-A of the Motor Vehicles Act, 1988 (for short 'M. V. Act'). In such a petition, the question of negligence has no relevance and the only point that is required to be proved is that the death or personal injury which gives cause of action for maintaining the claim petition has taken place on account of use of a motor vehicle. It cannot be disputed that the deceased has died on account of an accident in which the truck was involved. Further, the Hon'ble Supreme Court of India in a decision reported in (2019) 12 Supreme Court Cases 395 (Shivaji and Another Vs. Divisional Manager, United India Insurance 5 Company Limited and Others) has held that if the question of negligence is taken into consideration as relevant factor in a claim petition filed under Section 163-A of M. V. Act, the distinction between the claim petition filed under Section 166 of M. V. Act and one filed under Section 163-A of M.V. Act will be obliterated and it would defeat the purpose of the very legislation. It is observed in the said decision as follows:
4. 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, wherein it was held that to permit 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 were taking an unduly long time". The Court observed that if an insurer was permitted to raise a defence of negligence 6 under Section 163-A of the Act, it would "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".
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."
6. Therefore, there is no merit in the said contention and the appeal is liable to be dismissed. Hence, the following:
ORDER The above appeal is dismissed.
The amount in deposit shall be transmitted to the concerned Tribunal forthwith.
Sri Sanjay M. Joshi, learned counsel submits that he has received vakalat for the appellant in this case and he may be permitted to file the same in the 7 Registry. He is permitted to do so within two weeks from today.
The appellant - Insurance Company is directed to deposit the award amount within six weeks from the date of receipt of certified copy of this judgment.
Sd/-
JUDGE Srt