Karnataka High Court
Hanumanth Dehu Gouda S/O Dehu Gouda vs Ishwar Mahabaleshwar Kodiya on 13 July, 2017
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
M.F.A.No.20954/2011
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF JULY, 2017
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
MFA No.20954/2011 (MV)
BETWEEN:
HANUMANTH DEHU GOUDA,
S/O DEHU GOUDA,
AGED ABOUT 40 YEARS,
R/O KADNEER, HODIKESHIROOR,
HONNAVAR TALUK, U.K. DISTRICT.
... APPELLANT
(BY SRI.S.G.KADAKATTI, ADV.)
AND:
1. ISHWAR MAHABALESHWAR KODIYA,
MAJOR, R/O MUROOR, SALEHAKKAL,
KUMTA, U.K.DISTRICT.
2. MANAGER,
UNITED INDIA INSURANCE COMPANY LTD.,
HULIDEV COMPLEX, GIBB CIRCLE,
KUMTA (U.K.).
3. GANESH RAMA BHAT,
MAJOR, R/O KASARKOD,
HONNAVAR, U.K.DISTRICT.
... RESPONDENTS
(BY SRI.S.S.KOLIWAD, ADV. FOR R2,
SRI.V.G.BHAT, ADV. FOR R3,
R1 SERVED)
---
THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND
AWARD DATED 20.09.2010, PASSED IN MVC No.113/2008 ON THE
M.F.A.No.20954/2011
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FILE OF THE ADDITIONAL MACT AT HONNAVAR, DISMISSING THE
PETITION FILED U/S 163A OF MOTOR VEHICLE ACT.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appellant was the claimant in MVC No.113/2008 passed by the Additional MACT, Honavar (hereinafter referred to as 'The Tribunal', for short). He had filed a claim petition under Section 163A of the Motor Vehicles Act, 1988 (hereinafter referred to as 'M.V.Act', for short) seeking compensation for an alleged accident, wherein he is said to have sustained injuries.
2. The summary of the case of the appellant/claimant in the Tribunal below was that, on 24.12.2007 at about 11.15 a.m., while he was going from Chandavar towards Honavar by Bajaj M-80 motorcycle bearing reg.No.KA-31/E-5179, near Chandavar Church cross in Chandavar-Honavar road, a Hero Honda motorcycle bearing reg.No.KA-30/H-6855 dashed to his motorcycle. Due to the said impact, he suffered severe M.F.A.No.20954/2011 :3: injuries. Later, he took treatment at Government Hospital, Kumta and thereafter at Goa Medical College Hospital, Bambolim, Goa. He has further stated that, at the time of accident, as a farmer his earning was `6,000/- p.m., but due to the injuries suffered in the accident, he could not attend to his regular work. He has arraigned owner of the said motorcycle as respondent No.1 and insurer of the motorcycle bearing reg.No.KA-31/E-5179 as respondent No.2. Respondent No.3 was the owner of the motorcycle bearing reg.No.KA-30/H-6855. Similarly and simultaneously, the rider of the motorcycle bearing reg.No.KA-30/H-6855 had also filed a claim petition against the owner and insurer of motorcycle bearing reg.No.KA-31/E-5179 under Section 166 of the M.V. Act with respect to the very same accident seeking compensation. The Tribunal below after recording the evidence placed before it and analyzing the materials placed before it was pleased to dismiss MVC No.113/2008 filed by the present appellant and allowed in part the M.F.A.No.20954/2011 :4: other case, i.e., MVC No.114/2008. It is the said judgment and award of the Tribunal below wherein his claim petition was dismissed, the claimant has preferred this appeal.
3. The contention of the appellant in his memorandum of appeal as well as the argument of the learned counsel for the appellant are that, despite there being permissibility to convert a claim petition from Section 163A of M.V.Act to Section 166 of the same Act, the dismissal of his petition by the Tribunal below was erroneous. The appellant has further stated that, when two claim petitions were filed with respect to the very same accident, negligence on the part of both sides have been established, it was not fair on the part of the Tribunal below to dismiss his claim petition.
4. The main reason given by the Tribunal below while dismissing the claim petition of the present appellant was that the claim petition was filed under M.F.A.No.20954/2011 :5: Section 163A of the M.V.Act. As per the said section, a surviving victim is entitled for compensation, provided, if he has sustained any permanent disability due to the accident arising out of the use of motor vehicle. However, the claimant though could able to prove that he sustained injuries, but he did not suffer any permanent disability. As such, Section 163A of the M.V.Act was not applicable.
5. Section 163A of M.V.Act reads as under:
"163A. 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 or the authorized 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 be the same meaning and extent as in the Workmen's Compensation Act, 1923.M.F.A.No.20954/2011 :6:
(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule."
6. In order to claim compensation on structured formula basis, the victim who is survivor in the accident is required to establish that due to the accident arising out of the use of the motor vehicle he has suffered permanent disablement. In order to claim compensation under the said section, undisputedly, it is not required for the claimant to prove the alleged negligence in riding/driving of the offending vehicle. The evidence of the claimant as P.W.1, nowhere says that he has suffered any permanent disability due to the injuries suffered by him in the accident. Though he has given the details of the injuries M.F.A.No.20954/2011 :7: said to have been suffered by him, but he has not mentioned as to whether those injuries lead to or resulted in his permanent disablement. The wound certificate, which is at Ex.P5 is only a medical record produced by him to show the details of injuries said to have been sustained by him. The said wound certificate though mentions that, diagnosis reveals that the injured sustained head injury with contusion with fracture of skull and fracture orbit and identified the injury as grievous in nature, but nowhere it has stated that, it has resulted in permanent disablement of the injured. The discharge summary shown to have issued by the Department of Neurosurgery, Goa Medical College, Bambolim-Goa, which document is attached to Ex.P5 also does not mention about the injured suffering any permanent disablement due to the injuries.
7. Incidentally, P.W.2 doctor in his examination-in- chief also has stated that he examined the claimant and M.F.A.No.20954/2011 :8: has treated him. However, nowhere the said doctor also has stated that injuries sustained by the injured/claimant has resulted in any permanent disablement. Therefore, there is no material to arrive at any conclusion that injuries sustained by the claimant in the accident has resulted in any permanent disablement. As such, it does not warrant any interference in the finding of the Tribunal below on this point.
8. In addition to that, it is also pertinent to note at this juncture that, during the pendency of the claim petition in the Tribunal below, the claimant/appellant appears to have filed an application seeking conversion of his claim petition from Section 163A to 166 of M.V.Act. However, the said application came to be rejected. The fact remains that the claimant did not challenge the said order before the appropriate Court/authority. As such, the claim petition remained to be one under Section 163A of M.V.Act only. Further, it appears that despite the fact of M.F.A.No.20954/2011 :9: the application for conversion filed by the claimant being rejected, at the time of argument, the claimant filed a memo to consider the petition under Section 166 instead of 163A of the M.V.Act. Though it was not incumbent upon the Tribunal below to consider that memo, in view of the fact that, an application for the similar relief was previously been rejected by it and the said rejection had already been reached its finality, still the Tribunal below considered the materials available before it, as to whether it makes out a case under Section 166 of M.V.Act. After appraisal of the evidence led before it, the Tribunal below came to an opinion that the claimant even failed to establish that there was any rash and negligent driving on the part of the alleged offending vehicle and consequently, the claimant could not even make out a case under Section 166 of M.V.Act also. However, without subjecting the said finding for any reasoning, suffice it to say, by virtue of the order of the Tribunal dated 02.08.2010, the claim petition of the claimant/appellant was confined to a M.F.A.No.20954/2011 : 10 : petition under Section 163A of M.V.Act only. As observed above, though the accident in question was proved by the claimant, but Section 163A of M.V.Act remained unfulfilled for the reason that the claimant could not establish that he had suffered any permanent disablement due to the injuries suffered by him in the accident. As such, his claim petition has been appropriately dismissed by the Tribunal below, which finding does not warrant any interference at the hands of this Court.
Accordingly, the appeal stands dismissed. No costs.
Sd/-
JUDGE MBS/-