Karnataka High Court
Masabi W/O. Shahabuddin Kuddunawar vs Malleshappa V Chanadaragi on 8 November, 2022
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MFA No. 24030 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
MISCELLANEOUS FIRST APPEAL NO. 24030 OF 2011 (MV)
BETWEEN:
MASABI W/O. SHAHABUDDIN KUDDUNAWAR,
AGED: 55 YEARS,
R/O: SANGOLLI, BAILHONGAL,
DIST: BELGAUM.
...APPELLANT
(BY SRI. Y. LAKSHMIKANT REDDY, ADVOCATE)
AND:
1. MALLESHAPPA V CHANADARAGI,
AGE: MAJOR,
OCC: OWNER OF G.TEMPO KA-24/1689,
R/O: SANGOLLI, BAILHONGAL,
DIST: BELGAUM.
2. THE DIVISIONAL MANAGER,
M/S. ORIENTAL INSURANCE CO., LTD.,
SHANBAG CHAMBERS,
KIRLOSKAR ROAD, BELGAUM.
...RESPONDENTS
(BY SRI. RAJASHEKHAR S ARANI, ADV., FOR R2;
R1- NOTICE SERVED)
THIS MFA IS FILED U/SEC.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED 23-10-2009 PASSED IN
MVC.NO.282/2007 ON THE FILE OF THE I-ADDL. CIVIL
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MFA No. 24030 of 2011
JUDGE(SR.DN) AND MEMBER, MACT, BELGAUM, DISMISSING THE
PETITION FILED U/SEC.163A OF IMV ACT.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimant challenging the correctness of the judgment and award dated 23.10.2009 passed by the I-Additional Civil Judge (Sr.Dn) and M.A.C.T., Belgaum (for short "the Tribunal) in MVC No.282/2007 by which the petition was rejected.
2. The claimant is the mother of the deceased Sardar Shabuddin Kuddunavar. She claimed that on 02.10.1998 her son was traveling in a tempo bearing registration No.KA-24/1689 from Udupi to Sangolli. On the way, he met with an accident and sustained injuries and was shifted to Hospital at Honnavar and thereafter to Sangolli and then to the KIMS Hospital, Hubli. However, he died on 21.10.1998. The claimant contended that the accident was due to the rash and negligent driving by the driver of the vehicle and thus, she filed a claim petition claiming -3- MFA No. 24030 of 2011 compensation under Section 163-A of the Motor Vehicles Act, 1988.
3. The respondent No.1-owner of the vehicle did not contest the proceedings.
4. The respondent No.2, on the other hand, filed objections contending that the claimant had earlier filed a claim petition under section 22 of the Workmen's Compensation Act, 1923, before the Commissioner for Workmen's Compensation, Belagavi claiming compensation in respect of the very same accident wherein she contended that the deceased was employed in the vehicle in question. It contended that the claim petition was dismissed on 05.07.2001. Long thereafter i.e. after 6 years, the claimant filed the present claim petition under Section 163-A of the Motor Vehicles Act, 1988, which was not permissible in view of section 167 of the Motor Vehicles Act, 1988.
5. In response, the claimant contended that the deceased was traveling in the goods vehicle and that the risk of death was covered under the provisions of Section 147 of -4- MFA No. 24030 of 2011 the Motor Vehicles Act,1988. He claimed that since the Commissioner for Workmen's Compensation held that there was no employer and employee relationship, the claimant was entitled to claim compensation under the Motor Vehicles Act, 1988.
6. Based on the above contentions, the claim petition was set down for trial.
7. Claimant was examined as PW1 and she marked documents as Exs.P1 to 7. The insurer marked a copy of the judgment passed by the Commissioner for Workmen's Compensation as Ex.R1.
8. Based on the oral and documentary evidence, the Tribunal held that the claimant had exhausted the remedy by filing a claim petition before the Commissioner for Workmen's Compensation and hence the claimant was not entitled to claim under Motor Vehicles Act on the same cause of action. Hence, it dismissed the claim petition. Being aggrieved by the same, the present appeal is filed. -5- MFA No. 24030 of 2011
9. Learned counsel for the claimant submitted that the claim petition arises out of death of the son of claimant and therefore, the claimant was not clearly aware about the employment status of her son with respondent No.1 and therefore, the claim petition was filed before the Commissioner for Workmen's Compensation. He submitted that once the Commissioner for Workmen's Compensation held that there was no relationship of employer and employee, the petition was deemed to have not been filed and therefore, the Tribunal could not have held that the claimant had exercised her option of filing a claim petition in respect of the accident. He, therefore, contended that a petition under Section 163-A of the Motor Vehicles Act is still maintainable.
10. Per contra, learned counsel for the insurer contended that the claimant described that her son was employed with respondent No.1 and had rightly initiated proceedings under Section 22 of the Workmen's Compensation Act, 1923 to claim compensation. Once she had exercised her option, she could not fall back and file a -6- MFA No. 24030 of 2011 claim petition under Section 163-A of the Motor Vehicles Act, 1988. In this regard, he relied upon Section 167 of the Motor Vehicles Act, 1988, which reads as follows:
"167. Option regarding claims for compensation in certain cases.-Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both."
The learned counsel therefore, contended that the present claim petition under Section 163-A of the Motor Vehicles Act, 1988 was not maintainable. He further contended that even in the claim petition filed before the Motor Accident Claims Tribunal, the claimant described that her son was employed with the respondent No.1. He, therefore, contends that the claimant cannot now claim that her son was an unauthorized passenger in a goods vehicle and hence the insurer is liable -7- MFA No. 24030 of 2011 to indemnify the insured in respect of the compensation that may be determined by the Tribunal.
11. The learned counsel for the insurer contends that in similar circumstances, the Apex Court in the case of Oriental Insurance Company Limited Vs. Dyamavva and others reported in (2013) 9 SCC 406 and in the case of National Insurance Company Limited Vs. Mastan and another reported in (2006) 2 SCC 641 held that once a claim petition is made under the Workmen's Compensation Act, the claimant is deemed to have exercised option under Section 167 of the Motor Vehicles Act and therefore, the claim petition under Section 163-A of the Motor Vehicles Act is not maintainable.
12. I have considered the submissions made by the learned counsel for the claimant as well as the insurer.
13. Since the maintainability of the claim petition has fallen for consideration in this appeal, the same is taken up for consideration.
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14. As on the date of the accident in question, there were two enactments under which a claimant could file a claim petition for compensation. A claim petition under The Workmen's Compensation Act could be filed if the deceased was a workman and that death or bodily injury resulted to the workman out of the use of motor vehicle during the course of employment. A claim petition could also be filed under the Motor Vehicles Act, if the injured or the person dead was an employee of the owner. The claimant was bound to prove that the accident occurred due to the negligence of the tortfeasor. Under the Workmen's Compensation Act, the claimant is entitled to claim compensation to a limited extent by treating the income at a maximum of Rs.4,000/- per month or Rs.8,000/- per month as applicable, but under the Motor Vehicles Act, the compensation is based on the income actually earned. The purpose of both the enactments is to compensate the victim or the dependants of the deceased, who is injured or dead in road traffic accidents arising out of the use of a motor vehicle. The idea of incorporating Section 167 in Motor -9- MFA No. 24030 of 2011 Vehicles Act, 1988 is to ensure that there is no duplication of claim under both the enactments and to ensure that the two forums cannot be approached parallely or one after other to claim compensation. This seems to be the purpose of section 167 of the Motor Vehicles Act, 1988. In the present case, the claimant could not establish the employer-employee relationship between her son and the respondent No.1. Thus, a petition for claim did not arise under the Workmen's Compensation Act, 1923 and what was filed by the claimant was before the wrong forum. It is not the case of the insurer that the claimant had received compensation under the Workmen's Compensation Act and thereafter approached the Tribunal under the Motor Vehicles Act, 1988. Hence, it deserves to be held that in so far as the claimant is concerned, a claim did not "arise" under the Workmen's Compensation Act, 1923 and therefore, it was filed before a wrong forum. Therefore, in the present case, since the Commissioner for Workmen's Compensation had held that there was no relationship of employer and employee between the son of the claimant as well as the owner of the
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MFA No. 24030 of 2011 vehicle in question, it is to be held that a claim for compensation under the Workmen's Compensation Act "did not arise" and hence, the claim petition filed before the Commissioner for Workmen's Compensation should be held as filed before wrong forum. Thus, the claim petition filed by the claimant under Section 163-A of the Motor Vehicles Act, 1988 was maintainable. The Tribunal instead of considering the question of maintainability from this stand point, merely applied Section 167 of the Motor Vehicles Act as it stands and dismissed the petition filed by the claimant for compensation.
15. The Courts have held from time to time that the Section 166 of the Motor Vehicles Act and similar such provisions such as section 163-A and 140 of the Motor Vehicles Act are inserted into the Motor Vehicles Act with the yeoman objective of providing just compensation to the victims of road traffic accidents. Therefore, this Court having held that the petition filed by the claimant was maintainable considers it appropriate to entertain the petition filed by the claimant under section 163-A of the Motor Vehicles Act and
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MFA No. 24030 of 2011 determine the compensation instead of remitting the case back to the Tribunal as that would result in avoidable waste of time and expense.
16. In that view of the matter, the compensation to which the claimant is entitled to is required to be determined. The claimant was aged about 22 years at the time of the accident and thus, the multiplier applicable is '18'. Applying the formula prescribed under Schedule-II of the Motor Vehicles Act, 1988 by considering the income of the deceased @ Rs.24,000/- per annum, this Court considers it appropriate to award the following compensation.
Head Amount
(in Rs.)
Loss of dependency
(Rs.24,000 - 1/3rd (towards personal expenses) x 2,88,000/-
18 (multiplier) =Rs.2,88,000/-)
Towards funeral expenses 2,000/-
Towards loss of estate 2,500/-
Towards medical expenses 15,000/-
Total 3,07,500/-
17. In view of the above, the appeal is allowed in part and the compensation to which the claimant is entitled
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MFA No. 24030 of 2011 is Rs.3,07,500/-, which shall carry interest @ 6% per annum from the date of petition till the date of realization, which is payable by the insurer of the offending vehicle.
18. The insurer is ordered to deposit the compensation along with interest before the Tribunal within a period of one month from the date of receipt of certified copy of this order. Upon such deposit, it shall be kept in a fixed deposit in the name of the claimant in any nationalized bank for a period of three years.
Sd/-
JUDGE YAN, List No.: 1 Sl No.: 61