Karnataka High Court
Meenaxi W/O Yallappa Pujari vs Yallappa S/O Mudakapa Pujari And Anr on 1 June, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
MFA No. 33095/2013 (MV)
BETWEEN:
Meenaxi W/o Yallappa Pujari,
Aged about 25 years,
Occ: Household work,
R/o Matyal, Tq. B.Bagewadi,
Dist. Bijapur.
.....Appellant
(By Sri.Sanganagouda V.Biradar, Advocate)
AND:
1. Yallappa S/o Mudakappa Pujari,
Aged about 30 Years,
Occ: Business,
R/o Matyal, Tq. B.Bagewadi,
Dist. Bijapur-586 101.
2. The Branch Manager,
United India Insurance Company Ltd.,
NDA Road, Opp. Malwadi Bus-Stop,
Dudane Building, Warje Malwadi,
Pune-411 052.
Through the Divisional Manager,
United India Insurance Co. Ltd.,
Bijapur-586 101.
.....Respondents
(By Sri.Sanganabasav B.Patil, Advocate for R1;
By Sri.Manvendra Reddy, Advocate for R2)
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This MFA is filed under Section 173(1) of the Motor
Vehicles Act, praying to set aside the judgment and award
passed in MVC No.1120/2011 dated 04.10.2012 on the file of
the Motor Accident Claims Tribunal & Fast Track Court-I/II
Bijapur, and to allow the appeal by awarding compensation as
claimed in the claim petition.
This appeal coming on for Hearing, this day, the court
delivered the following:
JUDGMENT
This appeal is filed under section 173(1) of the Motor Vehicles Act, 1988 ('M.V. Act' for short) challenging the judgment and award dated 04.10.2012 passed by the Motor Accident Claims Tribunal and Fast Tract Court-I/II, Bijapur (Tribunal' for short) in MVC No.1120/2011, dismissing the claim petition filed by the petitioner/claimant under Section 163A of the MV Act.
2. For the sake of convenience, the parties herein are referred as per the ranks occupied by them before the trial Court.
3. The brief facts of the case are that, on 22.11.2010 while the deceased Nandini was sitting in the car bearing Registration No.MH-12-DG-7306 and at 5.30 p.m., on Nagaradninni-Asangi road, near Nagaradinni stream, the driver of the said car has got down for answering the nature's 3 call and at that time, due to melting of wires, fire was broken in engine and within a span of time the fire was caught all over the car. As such, the car was completely burnt and the deceased Nandini sustained burn injuries and she died on the way to the hospital. The deceased was aged about four years old baby and the petitioner has lost her loving daughter. Hence, the claimant has filed claim petition under Section 163(A) of the MV Act claiming compensation of Rs.5,00,000/- on the ground that the death is by use of the vehicle.
4. The Respondent No.2-Insurer has denied the claim on various grounds and disputed the liability.
5. The Tribunal has dismissed the claim petition on the ground that the vehicle was not involved in the accident and the respondents are not liable to any compensation. Being aggrieved by this judgment and award, the appellant/claimant has filed this appeal.
6. Heard the learned counsel for the appellant and the learned counsel for Respondent No.2-Insurer. Perused the records.
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7. Learned counsel for the appellant would contend that the Tribunal has lost sight of the fact that the death of the minor girl is because of the use of the vehicle when she was sitting in the vehicle and the Tribunal has lost sight of that aspect and has erroneously dismissed the claim petition. He would also contend that the Tribunal has not calculated any quantum and hence, he would seek for allowing the appeal by awarding compensation of Rs.5,00,000/- to the appellant/claimant.
8. Per contra, learned counsel for Respondent No.2- Insurer would support the judgment and award of the Tribunal.
9. Having heard the arguments of the learned counsels on both sides and perusing the records, it is evident from the records that the victim was travelling in the offending Car and the said car caught fire because of short- circuit in engine and the victim sustained burn injuries and succumbed on the way to the hospital. As the death is due to use of the alleged vehicle, a claim petition came to be filed under Section 163(A) of the MV Act. The Section 163(A) of the MV Act specifically states that, on account of death, 5 permanent injury or injuries arising due to accident arising use of the vehicle, the claimants are entitled for compensation. Admittedly, in the instant case, the vehicle was involved in the accident, though it is not due to rash and negligent driving on the part of the driver of the vehicle, but it is due to some mechanical defect, which has resulted in causing fire in the vehicle. Hence, since cause of accident is due to use of the vehicle itself, the claimant is entitled for compensation, as petition is filed under Section 163(A) of MV Act.
10. Learned counsel for the appellant would submit that the matter may be remanded to the Tribunal for calculation of compensation. However, it is to be noted here that the deceased is only a minor child of four years. In the decision of the Hon'ble Apex Court reported in (2014) 1 SCC 244 (Kishan Gopal and Another Vs. Lala and Others), wherein the victim who was aged about 10 years, has awarded compensation of Rs.5,00,000/-. Further, in Special Leave Petition No.5311/2019 (Kurvan Ansari Alias Kurvan Ali & Another Vs. Shyam Kishore Murmu & Another), the Apex Court has awarded compensation of 6 Rs.4,70,000/- in the case of death of a minor aged about 7 years. Under these circumstances, looking to the facts and circumstances, the claimant is entitled for Rs.4,70,000/- as compensation on account of death of the minor child- Nandini.
11. It is an undisputed fact that the alleged vehicle was insured with Respondent No.2 and the policy is also covered the risk of the inmates as additional premium was paid. The Ex.R1-Insurance Policy, which is produced by the Insurance Company itself would clearly establish that the additional premium of Rs.1,400/- for covering the risk of four passengers is collected. Under these circumstances, when Respondent No.2-Insurance Company has collected additional premium for covering the liability of four passengers, the insurance company cannot be exonerated from paying compensation and the compensation is to be paid by the Respondent Nos. 1 & 2, as liability is joint and several. As such, the appeal needs to be allowed and accordingly, I proceed to pass the following:-
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ORDER
i) The appeal is allowed in part. The claimant is held entitle for total compensation of Rs.4,70,000/- with interest at 6% pa., from the date of petition till the date of realisation of the entire claim amount.
ii) The primary liability is fastened on
Respondent No.2-Insurer. Respondent
No.2-Insurer is directed to pay the entire compensation with accrued interest thereon within six weeks from the date of receipt of a copy of this judgment.
iii) The claimant is not entitled for interest for the delayed period of 691 days in filing this appeal.
Sd/-
JUDGE KGR*