Karnataka High Court
Neelawwa S/O Babanna Patil And Ors vs The Divisional Controller Ksrtc on 22 May, 2023
1 MFA.No.201516/2016
IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
DATED THIS THE 22ND DAY OF MAY, 2023
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
MFA No.201516 OF 2016 (MV-D)
BETWEEN:
1. NEELAWWA
S/O BABANNA PATIL
AGE: 61 YEARS
OCC: HOUSE HOLD WORK
2. PRABHAVATI
W/O MONAPPA PATIL
AGE: 35 YEARS
OCC: HOUSE HOLD WORK
3. SHASHIKANT
S/O MONAPPA PATIL
AGE: 15 YEARS
M/G BY APPELLANT NO.2
4. SUJATA
D/O MONAPPA PATIL
AGE: 13 YEARS
M/G BY APPELLANT NO.2
5. RAVIKANT
S/O MONAPPA PATIL
AGE: 11 YEARS
M/G BY APPELLANT NO.2
ALL ARE R/O LALASANGI, TQ: INDI,
DIST: VIJAYAPURA - 586 101
...APPELLANTS
(BY SRI. SANGANAGOUDA V BIRADAR, ADVOCATE)
2 MFA.No.201516/2016
AND:
THE DIVISIONAL CONTROLLER,
K.S.R.T.C., VIJAYAPURA DIVISION,
VIJAYAPURA - 586 101
... RESPONDENT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 173(1) OF M.V. ACT,
PRAYING TO ALLOW THIS APPEAL AND ENHANCE THE
COMPENSATION AS CLAIMED IN THE CLAIM PETITION BY
MODIFYING THE JUDGMENT AND AWARD DATED 15.04.2016
PASSED BY THE COURT OF IV ADDL. DISTRICT AND SESSIONS
JUDGE AND MEMBER, MACT NO.XIII, AT VIJAYAPURA IN
M.V.C.NO.1565/2013, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 10.02.2023, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
JUDGMENT
Being aggrieved by dismissal of their petition filed under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act') and grant of compensation in a sum of Rs.50,000/- under no fault liability as provided under Section 140 of Act, petitioners have come up with this appeal under Section 173(1) of the Act, with a prayer to set aside the impugned judgment and award dated 15.04.2016 and grant compensation as provided under Section 166 of the Act. 3 MFA.No.201516/2016
2. In addition petitioners have filed I.A.No.1/2022 under Order 6 Rule 17 C.P.C, with a prayer to permit them to amend the petition by converting the petition under Section 166 into Section 163-A of the Act and grant compensation under the structured formula.
3. For the sake of convenience the parties are referred to by their rank before the Tribunal.
4. It is the case of the petitioners that they are the mother, wife and children of late Monappa Patil. On 25.05.2013, at about 12.15 p.m, deceased Monappa Patil was riding motor cycle bearing registration No.KA-28/EB-8159 (for short 'motor cycle'), on Sindagi-Almel Road, along with a pillion rider. Near Rampur village driver of KSRTC bus bearing registration No.KA-28/F-1520 ('offending vehicle' for short), came in a rash or negligent manner came from opposite side and dashed against the motor cycle. In the said accident deceased Monappa Patil sustained grievous injuries and died at the spot. Petitioners were dependent on him. 4 MFA.No.201516/2016
5. As the owner and insurer of the offending vehicle, respondent is liable to pay the compensation and sought for grant of compensation in a sum of Rs.15,00,000/-.
6. Respondent have appeared and filed written statement contending that it was the deceased Monappa Patil, who rode the motor cycle in a rash or negligent manner and dashed against the KSRTC bus. There was no fault on the part of the driver of the offending vehicle and sought for dismissal of the petition.
7. Based on the pleadings, the Tribunal has framed necessary issues.
8. In support of petitioner's case, petitioner No.2 is examined as PW-1 and one witness is examined as PW-2. Ex.P1 to 9 are marked.
9. Respondent has not led any oral or documentary evidence on its behalf.
10. After appreciating the oral and documentary evidence placed on record, the Tribunal came to the conclusion that petitioners have failed to prove that accident 5 MFA.No.201516/2016 occurred due to the rash or negligent driving of the offending vehicle and accordingly answered issue No.1 in the negative. However, moulding the relief and acting under Section 140 of the Act, the Tribunal has granted compensation in a sum of Rs.50,000/- under no fault liability.
11. Being aggrieved by the impugned judgment and award, petitioners have come up with this appeal contending that the Tribunal has failed to appreciate the fact that complaint was filed on hearsay information. Complainant is not an eye witness to the accident. Relying upon such evident, the Tribunal has erred in dismissing the petition under Section 166 of the Act.
12. In support of I.A.No.1/2022, petitioner No.2 has filed affidavit stating that the petition is filed under Section 166 of the Act, but the Tribunal has dismissed the same. Relying upon the police records viz., FIR and charge sheet which is filed against deceased, the Tribunal has granted compensation in a sum of Rs.50,000/- under no fault liability. Therefore, petitioners are seeking permission of this Court to 6 MFA.No.201516/2016 amend the claim petition by converting it into 163-A of the Act and grant compensation under structured formula.
13. Respondent had filed objections contending that the application filed for converting the petition under Section 166 to 163-A of the Act is not tenable, since the deceased himself was the tort-feasor. He was not the victim and consequently abated charge sheet is filed against him. Therefore, the Tribunal has granted compensation under no fault liability as per Section 140 of the Act and prays to dismiss the petition.
14. Heard arguments and perused the record.
15. It is not in dispute that at the time of accident, deceased Monappa Patil was riding the motor cycle along with pillion rider Shantaveerappa Biradar. Petitioners have pleaded that at the time of accident, deceased was riding the motor cycle along with pillion rider and the offending vehicle came from the opposite side and dashed against the motor cycle as a result of which both rider as well as the pillion rider died on the spot. However, in respect of the said incident, a complaint 7 MFA.No.201516/2016 is filed by one Ramesh Vinayak Biradar, relative of deceased Shantaveerappa Biradar pillion rider of the motor cycle. Immediately after coming to know about the incident, he has reached the spot and after coming to know about how exactly the accident happened, he has lodged the complaint, wherein he has specifically stated that in order to over take a bus which was going in front of the motor cycle, deceased tried to pass the said bus without observing the on-coming offending vehicle and dashed against the offending vehicle. In fact the spot mahazar disclose that the driver of the offending vehicle has applied brake and at the spot, upto distance of 15 ft, the tyre marks of the offending vehicle could be seen. It may be true that the complainant was not an eye witness, however, after conducting detailed investigation the Investigating Officer has filed charge sheet against deceased Monappa Patil. The charge sheet disclose that there are eye witnesses to the incident. Only after conducting the detailed investigation, charge sheet is filed against deceased Monappa Patil. Admittedly, the charge sheet is not challenged by the petitioners.
8 MFA.No.201516/2016
16. Thus from the very documents placed on record by the petitioners, it is evident that accident caused due to the rash or negligent driving of the motor cycle by the deceased Monappa Patil. Even though there is involvement of the offending vehicle, the petitioners have failed to establish that accident occurred due to the rash or negligent driving of the offending vehicle. Therefore, rightly the Tribunal has answered issue No.1 in the negative and absolved respondent, who is the owner-cum-internal insurer of the offending vehicle. However, acting under Section 140 of the Act, the Tribunal has rightly granted compensation in a sum of Rs.50,000/- under no fault liability.
17. Now coming to the application filed by the petitioners under Order 6 Rule 17 CPC seeking permission to convert the petition under Section 166 of the Act into Section 163-A of the Act. In this regard it is relevant to refer to the decision of the Division Bench of this Court in Oriental Insurance Co.Ltd Vs. Sharada G and others(Sharada G's case)1. It was a case wherein deceased was riding a scooter. 1 (2009) 4 Kant LJ 121 (DB) 9 MFA.No.201516/2016 In order to avoid a pedestrian who suddenly rushed into the road, he turned the scooter towards the extreme left side of the road and dashed against a road divider, sustained injuries and died while undergoing treatment. His legal representatives filed petition under Section 166 of the Act. However, during the pendency of the proceedings, the Tribunal permitted the petitioners to convert the petition into 163-A of the Act and partly allowed the claim petition granting compensation in a sum of Rs.3,98,000/-. It was challenged before the Hon'ble Division Bench of this Court. During the course of the said judgment, the following points fell for consideration of the Hon'ble Division Bench:
"8 Taking note of the rival submissions the following points arise for our consideration:
(1) Whether the claim petition under Section 166 of the MV Act was maintainable?
(2) If the answer to Point No.1 is in negative whether the Tribunal was right in permitting conversion of the claim petition to one under Section 163-A of the said Act?
(3) If the answer to Point No.2 in the affirmative whether the Tribunal was justified in awarding compensation in terms of the 2nd Schedule of the Act by restricting the annual income of the deceased to Rs.39,000/- ?10 MFA.No.201516/2016
(4) Whether the respondents-claimants are entitled any relief?"
18. During the course of the judgment, the Hon'ble Division Bench at Para Nos.11 and 12 observed as follows:
"11. Section 166 applies to a case where the claimants have to prove negligence on the part of the tort-feasor before compensation can be awarded in a claim petition filed by them. Under proviso to sub- section (2) of Section 166 a claim has to make a statement that no claim for compensation under Section 140 has been made. Therefore, the two sections namely Sections 166 and Section 140 are mutually exclusive inasmuch as when a claim petition under Section 166 is filed, it is incumbent upon the claimants to prove negligence on the part of the tort-feasor.
12. Section 163-A of the Act beings with a non obstante clause and it says that notwithstanding anything contained in the Act (Motor Vehicles Act) or any other law for the time being in force, the owner or insurer of a motor vehicle is liable to pay as per Schedule II in respect of death or permanent disablement due to accident arising out of the use of a motor vehicle. Under sub-section (2) of Section 163-A the claimant is not required to plead or establish that the death or permanent disablement was due to any wrongful act or negligence on the part of vehicle or vehicles concerned or of any other person. Therefore, the implication is that the claimant can seek compensation in terms of the formula provided under Schedule II without pleading or establishing negligence on the part of the owner of the vehicle or vehicles concerned or of any other person. This implies that if the tort is committed by a person other then the claimant or deceased then the legal representatives of 11 MFA.No.201516/2016 the deceased or the injured claimant, without establishing the said negligence, can seek compensation in terms of the Schedule II"
19. At para No.15, the Hon'ble Division Bench has observed as follows:
"15. Under Section 141 of the Act the right to claim compensation under Section 140 is in addition to any other right except the right to claim under the scheme referred to under Section 163-A. Therefore, this section also makes it clear that Section 163-A and Section 140 are mutually exclusive. Further under Section 144 of the Act, it is stated that the provisions of the Chapter X which contains Section 140 has an over-riding effect notwithstanding anything contained in any other provisions of the Act or any other law for the time being in force. As already mentioned, Section 163-A also has a non-obstante clause, but Section 163-B states if a compensation can be claimed under Section 140 and Section 163-A of the Act, then the claimant can file either under the said section and not under both. A reading of Section 163-A and sub-sections (1), (2) and (3) of Section 140 would make it apparent that the claim petition could be maintained under either of the two sections in which case the claimant need not plead or establish negligence. But the words used in sub-
section (3) of Section 140 and sub-section (2) of Section 163-A namely wrongful act, neglect or default of the owner of the vehicle or vehicles concerned or of any other person are in pari material. Therefore, these provisions inherently mean that there is negligence on the part of the rider/driver of the vehicle, who has contributed to the accident and under such circumstances under Section 163-B a claim petition is maintainable either under Section 140 or under Section 163-A of the Act."
12 MFA.No.201516/2016
20. At para Nos.16 and 17, the Hon'ble Division Bench has observed as follows:
"16. These provisions however, do not include a situation where the claimant himself or the deceased was the rider/driver of the vehicle and has died on account of his own negligence irrespective of whether there is another vehicle or tort-feasor involved in the accident. In other words it covers a case where the rider/driver of the vehicle is solely negligent in causing the accident and there is no negligence on the part of any other person though involved in the accident or a situation where there is no other person or vehicle involved in the accident and the accident has occurred due to the wrongful act of the ride/driver of the vehicle. For instance, when a stray animal comes in the way of the vehicle and so as to avoid hitting the said animal and inevitable accident occurs. Under such circumstances the Act provides relief under sub-section (4) of Section 140 and the compensation can be claimed under sub-section (1) read with sub-section (2) of Section 140 of the Act in which event the share of the person responsible for the death or disablement on account of the accident will not come in the way in defeating or reducing the compensation.
In other words when a person is solely responsible for the accident and there is no other tort-feasor involved or responsible in causing the accident, then the compensation cannot be defeated, as under sub-section (4) of Section 140 read with sub-sections (1) and (2) relief is provided for the mere use of the vehicle.
17. Therefore, a situation which is covered under sub-section (4) of Section 140 cannot also be covered under Section 163-A, it is for that purpose both the section begin with non obstante clause and by a harmonious reading of two sections it can be held that while invoking sub- section (4) of Section 140 no other tort-feasor is involved in the accident and that the rider/driver 13 MFA.No.201516/2016 of the vehicle is solely responsible for causing the accident and based on the principle of strict liability or no fault liability, compensation is awarded to a limited extent even in a case where the claimant himself is a tort-feasor. This is an exception to the general doctrine of negligence and hence sub-section (4) of Section 140 is an exception to Section 166 of the Act where negligence has to be proved and also Section 163-A of the Act where the negligence on the part of another tort-feasor need not be proved. Therefore, we answer point No.1 by holding that the claim petition under Section 166 of the Act was not maintainable in the instant case inasmuch as the accident occurred on account of the own negligence of the deceased himself."
21. At para No.18, referring to the decision of the Hon'ble Division Bench of this Court in Appaji (since deceased) Vs. M.Krishna reported in 2004 ACJ 1289 (Kar), the Hon'ble Division Bench observed as follows:
"18. In the case of Appaji (since deceased) v. M.Krishna, a Division Bench of this Court has held that Section 163-A of the Act was never intended to provide relief to those who suffered in road accident not because of the negligence of another person making use of a motor vehicle, but only on account of their own rash, negligent or imprudent act resulting in death or personal injury to them. The non obstante clause in Section 163-A simply dispenses with proof of fault by the claimants against the driver or the owner of the vehicle involved in the accident. The claimant under Section 163-A, therefore, need not prove that the driver or the owner of the vehicle was at fault in the sese that the accident had occurred on account of any negligence or rashness on his part. That does not, however, mean that the claimant can maintain a claim on the basis of 14 MFA.No.201516/2016 his own fault or negligence and argue that even when he himself may have caused the accident on account of his own rash and negligent driving, he can nevertheless make the Insurance Company pay for the same."
22. Similarly referring to the decision of Hon'ble Supreme Court in Deepal Girishbhai Soni Vs.United Insurance Co. Ltd, Baroda reported (2004) 5 SCC 385, the Hon'ble Division Bench has held as under:
"20. Subsequent to this decision is the decision of the Hon'ble Supreme Court in the case of Deepak Girishbhai Soni v. United Insurance Company Limited, Baroda, which is a decision rendered by a larger Bench on a reference by a Bench of two Judges doubting the correctness of the earlier decision in Oriental Insurance Company Limited v. Hansrajbhai V. Kodala. In the said decision it has been held that Section 163-A of the Act covers cases where even negligence is on the part of the victim. It is by way of an exception to Section 166 and the concept of social justice has been duly taken care of. The ratio of this decision in our view applies to a case where the injured/claimant or the deceased as well as any other tort- feasor or tort-feasors may have jointly contributed to the accident and in such an event the injured/claimant or the deceased tort-feasor need not plead or prove negligence of the other tort-feasor and can claim compensation from the wrongful person."
23. At para No.21, the Hon'ble Division Bench observed as under:
"21. However, the decision of the Division Bench of this Court in Appaji's case is applicable to a situation where there is no other tort-feasor and that the 15 MFA.No.201516/2016 injured/claimant or the deceased was solely responsible in causing the accident. Though the Hon'ble Supreme Court has opined that Section 163-A of the Act covers case where even negligence is on the part of the victim and is by way of exception to Section 166 of the Act, the said enunciation has to be made applicable to a case where the victim is negligent along with other tort- feasor who has also contributed to the accident. But in a case where the injured claimant or the deceased alone is the cause of the accident and there is no other person involved as in the instant case then in that event, Appaji's case becomes applicable and the injured/claimant or the legal representatives of the deceased would be entitled to compensation under Section 140 of the Act on no fault basis and their claim under Section 163-A of the Act is not maintainable as held in the said decision of the Division Bench of this Court."
24. Adverting to the question whether the Tribunal was right in permitting conversion of claim petition to one under Section 163(A) of the Act, at para No.23, the Hon'ble Division Bench has held as under:
"23. As already stated under Section 166 of the Act, the cause of action arises on the basis that there is a tort-feasor who on account of his negligence has caused injury or death and the entire basis of Section 166 is proof of negligence before awarding compensation. Per contra, under Section 163-A of the Act, the claimant need not proved the negligence on the part of any other person and can claim compensation on the basis of the Schedule II. Therefore, under Section 163- A the basis of the claim petition is not on negligence, but irrespective of negligence on the part of the owner of the vehicle or any other 16 MFA.No.201516/2016 person been proved compensation can be sought. Therefore, Sections 166 and 163-A are as already stated mutually exclusive and the basis of the proceeding and the decision would be totally different, as the cause of action is also on a different footing in as much as negligence has to be proved under Section 166 before compensation is awarded whereas under Section 163-A negligence need not be pleaded or proved on the part of a tort-feasor. Hence, when a claim petition is filed under Section 166 of the Act, on our view the same cannot be permitted to be converted to one under Section 163-A of the Act as it would amount to change in the basis of cause of action and as such the amendment is not permissible."
25. At para No.24, the Hon'ble Division Bench referred to the decision of the Hon'ble Supreme Court in United India Insurance Company vs. Anitha, reported in ILR 2007 KAR 28 (DB), the Hon'ble Division Bench observed as follows:
"24. We are supported in this view by the decision of the Hon'ble Supreme Court in the case of United India Insurance Company V. Anitha wherein the claim petition filed under Section 166 of the Act was later on converted into Section 163-A of the Act and though the Tribunal in the said case recorded a positive finding that the income of the deceased was Rs.1,20,000/- p.a, it was confined to Rs.40,000/- p.a. so as to bring the case within the ambit of Section 163-A of the Act by the Tribunal. The said decision was challenged by the Insurance Company and this Court held that the procedure followed by the Tribunal was contrary to the law laid down by the Apex Court and that the Tribunal ought to have dismissed the claim petition. Further in the said case it was also urged by the Insurance Company that the deceased was at fault and the 17 MFA.No.201516/2016 accident took place on account of rash and negligent driving of the Jeep by the driver concerned and therefore, the Insurance Company could not made liable for the fault of the driver of the vehicle."
26. Referring to the decision in Deepal Girishbhai Soni, he Hon'ble Division Bench held that only persons whose annual income is upto Rs.40,000/- can take the benefit of Section 163-A of the Act and the Tribunal ought not to have allowed the claim petition under Section 163-A of the Act, by scaling down the annual income from Rs.1,20,000/- to Rs.40,000/- p.a. so as to bring the case within the purview of Section 163-A of the Act.
27. Thus, in the light of the above decision of the Hon'ble Division Bench, in Sharada G's case, a petition under Section 166 of the Act cannot be converted into one under Section 163-A of the Act, when the driver of the offending vehicle is not guilty of causing the accident. Therefore, the application filed by the petitioners to convert the petition from 166 to 163-A of the Act cannot be allowed. Rightly, the Tribunal has granted compensation in a sum of Rs.50,000/- 18 MFA.No.201516/2016 under no fault liability. In the result the appeal fails and accordingly, I proceed to pass the following:
ORDER
(i) Appeal filed by petitioners under Section 173(1) of M.V.Act is hereby dismissed.
(ii) The registry is directed to send back the trial Court record along with copy of this judgment to the Tribunal forthwith.
Sd/-
JUDGE RR